Re: The SFLC dismissals should be coming soon

[Hyman Rosen]

On 2/16/2010 6:46 AM, RJack wrote:
> First, to
> support a copyright the original aspects of a derivative work must be
> more than trivial. Second, the scope of protection afforded a derivative
> work must reflect the degree to which it relies on preexisting material
> and must not in any way affect the scope of any copyright protection in
> that preexisting material"; Durham Industries Inc v. Tomy Corporation,
> 630 F2d 905 (2nd Cir 1980).
>
> Tell it to the court Hyman.
>
> 1) A ratio of a few lines to 7.7 million lines is trivial.

Perhaps you should listen to the court. It has already
addressed triviality.

<http://www.digitalmedialawyerblog.com/2009/09/good_copyright_registration_hy_1.html>
    Copyright law classifies works as "original" and "derivative" works.
    A "derivative" work is a work that is based on "one or more preexisting
    works." 17 U.S.C. § 101. To be fully protected, derivative works must
    be copyrighted separately from the original works on which they are
    based. In an attempt to circumvent the Court's ruling, Simplex argued
    that the changes it had made in the software between the serial editions
    of each revision were trivial, so the different editions within each
    revision did not qualify as "derivative" works and did not require
    separate copyright registration. Under Simplex's theory, because each
    version of the software was not a derivative work, it registration of
    one of the versions within each "revision" should be sufficient to
    confer subject matter jurisdiction over the entire revision.

    However, the Court found that the evidence at trial simply did not
    support the claim that the changes made in the serial editions of each
    revision were trivial. Second Circuit case law establishes that only a
    minimal degree of changes must be made for a work to be considered
    derivative. See Merkos L'Inyonei Chinuch, Inc. v. Ostar Sifrea Lubavitch,
    Inc., 312 F.3d 94, 97 (2nd Cir. 2002) (to be considered original, a work
    must be independently created by the author and possess "at least some
    minimal degree of creativity."). Here, the evidence showed that there were
    numerous changes between different versions: For example between versions
    10.01.01 and 10.50, an additional audio programming feature was added and
    275 defects were repaired.

    Simplex argued that the evidence also showed that some versions contained
    fewer alterations. For example, it pointed out that version 10.61.10 added
    no new functional changes or enhancements over version 10.61 and only
    repaired a handful of defects. However, the Court pointed out that, in
    focusing on these changes, Simplex was looking at the wrong standard. The
    issue is not the degree to which a change affects the functionality of the
    software, but the amount of changes made in "the literal elements of the
    computer program, i.e., their source and object codes." The Court stated:
    "Even if adding a new feature, or repairing a defect, is functionally
    trivial, it does not follow that the change did not involve originality in
    the new computer code that effects the functional change."

> 2) Your theory says BusyBox is [a sequence of derivative works]
> I'll leave it to you to identify the individual contributions and
> ownership claims in this 7.7 million byte "derivative work" when you
> address the court.

Every author has ownership in the pieces of work he has contributed
and in the arrangement of the components in the whole of BusyBox in
every version after he has contributed changes. As we know from Gaiman
v. McFarlane, each author can register copyright in the work, and that
registration represents only his own interest in the work, and does not
affect or disparage ownership claims of the other authors. Registration
then allows the author to sue for infringement.