Re: Bye - Bye , open source derivative works litigation

[Hyman Rosen]

On 2/12/2010 1:44 PM, RJack wrote:
> The procdures for acceptance and approval at the BusyBox development site:
> http://busybox.net/developer.html
> determine how the contributing authors works are jointly committed to
> the single program called BusyBox. The GPL has nothing to do with it.
> The joint authors may license their code under any license they wish but
> that fact doesn't prevent the formation of a joint work.

In order for BusyBox to be a joint work, every one of its authors
must intend, or have intended, for it to be a joint work. Absent
proof of such intention, it is not a joint work but a collective
work, with derivative works generated by each change. As we see in
<http://tushnet.blogspot.com/2009/04/settlement-disagreement-leads-to.html>
     "Each new version ... is a separate derivative work"
software development spins off endless numbers of such derivative
works during the course of development, no matter how minor the
changes.

> The joint work may be released under the GPL to the public

It is not a joint work.

> but that fact  does not change the reality that the GPL is
> unenforceable as a contract

It is not a contract but a license, and it is enforceable only
to the extent that someone is agreeing to be bound by it. If they
do not wish to be bound by it, they need not be, but then they
have no other permission to copy and distribute the GPLed work.

> and is preeempted by 17 USC 301(a)

Preemption of copyright issues by federal law is completely
irrelevant with respect to the GPL, which is a copyright
license and grants extra permission beyond what unadorned
copyright law allows, consistent with the rights of copyright
holders to grant such permission as defined by 17 USC 106.
<http://www.law.cornell.edu/uscode/17/usc_sec_17_00000106----000-.html>