Citing an example of people who make legal works based on other pre-existing works would be an exercise in patience and most likely futility, since these situations rarely ever go to court. It would be like you saying "crossing the street is illegal - here's a cited example: John Doe Jaywalker vs. The State of New York", and then asking me to cite examples of legal street crossing.

Well I'm glad you now accept that piecewise reimplementation results in copyright infringement, but I'm afraid it goes further than that.



Using the original source as a reference won't guarantee that your work infringes - or that it won't - but credible evidence of access to the plaintiff’s work is one of the requirements for subconscious copying. If you're using existing code as a reference, even if you're trying not to copy the work, the chances of accidental copying are increased (particularly when it comes to non-literal elements).



That is always a risk, although it would only apply in cases where there was evidence of access to the plaintiff's copyrighted work. I've also reduced the risk by not referencing other code while working on my mud, and (whenever possible) avoiding similarities to copyrightable elements I'm familiar with.

Then why do you keep trying to act as though you know you're right, when there's no court precedents to back up your position, and we've got plenty of them to back up ours? Especially when ours all say that what you're proposing would be an infringement under copyright law. There's just no way around it. You've been soundly proven wrong, and are apparently now attempting to backtrack on that to make it seem like you've agreed with us all along.

You have enough patience to argue your point against every one of us. Please, use some of that patience to find some way to prove you are correct and we are all incorrect.

©2008

Enough patience to argue the point in circles for ~14 pages, too…

I'd quote you Darwin but I wouldn't want to infringe on your copyright. But maybe I can quote your words, and rewrite them one word at a time… :wink:

Snicker…

Don't forget to have them open in another window, then stand on your head and spin 3 times while chanting "I am not a copyright infringer" You, do know, its all about the vodoo, not the intent.

I agree, but people should also realize that not using a reference does not guarantee that you will not infringe, just as using one does not guarantee that you will. It all comes down to how careful you are and how much you know about what is protected.



Just because you can prove that you had no access to said work and weren't familiar with it at all, doesn't change the fact that it's infringing material, which would still have to be changed. If you didn't change it, you'd be liable for prosecution.

There's no court precedents to back up the fact that I can dance naked in my bedroom, either. I guess that must be illegal! *snap*

In 1989, Apple filed suit against Microsoft and Hewlett-Packard, claiming that the Windows graphical user interface (Windows 2.03 and HP's New Wave) infringed Apple's copyright on the "look and feel" of the Macintosh desktop. (As Apple argued: "We invented the desktop metaphor.") Apple eventually lost in district court in 1992.
This was a complex decision in which the copyright infringement claims for the various elements of the desktop were thrown out on a variety of grounds. One important basis for the ruling was the court's finding that the appropriate standard to apply was whether the two GUI presentations were "virtually identical," whereas Apple had argued that the appropriate standard was "substantial similarity." The decision of the lower court was upheld by the 9th Circuit in 1994.

It's a fair assumption to say that Microsoft didn't just coincedentally come up with the desktop GUI out of thin air, and were highly influenced by Apple's version. In this case, derivation and substantial similarity weren't even enough for a verdict.

Spoken like a true political liberal. Oh wait, that would be immature of me to say wouldn't it?

I'm sorry you can't back yourself up with something more concrete than a case which should have been tried in patent court and not copyright court. Just because Apple thought Microsoft stole their code means nothing. The proof would have been in the source, which everyone knew Bill didn't steal. He saw the idea of a GUI and decided he wanted one too. Of course, the dark side of it all that nobody ever wants to discuss is that Apple itself "stole" the idea from Xerox Parc. That Apple got as far as they did in court back then actually just goes to prove how naive the courts were back then about software IP rights.

Eh… now that was completely uncalled for… :thinking:

David, when have you ever known me to hold back on an opinion, especially a politically based one, when I think the behavior fits the pattern?

That's not the point at all. What you said is a very insulting and unhealthy/dangerous statement for the forums. :shrug: It was also completely unnecessary and irrelevant, and only serves to piss people off for no reason whatsoever. But do as you wish . . .

Just to be clear, what is insulting is not the state of being "liberal" or "conservative" but the implication that because you think drrck is being stupid, he is acting like a liberal.

The reason I made the statement is because that's the kind of childishly irrelevant answers I tend to see coming from the liberals I talk to all the time when the argument doesn't go their way and they have nothing left. It's either complete silliness that has no merit, or name calling along the lines of "you're a racist/bigot/homophobe/evil". Unlike a lot of people who are intimidated by political correctness, I don't shy away from it. Life is too short to allow that.

BTW, this is also an indication the topic has probably run its course and further replies would likely lead to more useless bickering on all sides. Since I've been heavily involved up to this point I'll defer judgment to the other admins on whether to bring this to an end.

I don't see the need to make irrelevant, politically inflammatory statements on a public forum that is not even discussing politics. It has nothing to do with political correctness. It's a question of common sense, civility and responsibility as members (and especially administrators) of the community. Would you be happy if somebody informed you that you were acting in some stupid way because you were a conservative? It would be a ridiculous thing to say, just as it was inappropriate for you to say the same. That's really all I have to say about it…

The burden of proof wouldn't be on the defendant (obviously - as you can't prove a negative). It would instead be up to the plaintiff to prove (1) evidence of access to the copyrighted work, and (2) substantial similarities between their work and the alleged infringing work. Without evidence of access, the similarities would need to be striking, to be sure they weren't coincidental.

Note: http://ccnmtl.columbia.edu/projects/law/...

"It is usually evidence of access from which the trier of the facts may reasonably infer copying. Of course, if there are no similarities no amount of evidence of access will suffice to prove copying. If there is evidence of access and similarities exist then the trier of the fact must determine whether the similarities are sufficient to prove copying. If evidence of access is absent the similarities must be so striking as to preclude the possibility that the writers of two songs arrived at the same result. Arnstein v. Porter, 2 Cir., 154 F.2d 464."

Or in more detail: http://ccnmtl.columbia.edu/projects/law/...

"If, however, the plaintiff does not have direct evidence of access, then an inference of access may still be established circumstantially by proof of similarity which is so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter precluded."

"…no matter how great the similarity between the two works, it is not their similarity per se which establishes access; rather, their similarity tends to prove access in light of the nature of the works, the particular musical genre involved and other circumstantial evidence of access."

"As a threshold matter, therefore, it would appear that there must be at least some other evidence which would establish a reasonable possibility that the complaining work was available to the alleged infringer. As noted, two works may be identical in every detail, but, if the alleged infringer created the accused work independently or both works were copied from a common source in the public domain, then there is no infringement. Therefore, if the plaintiff admits to having kept his or her creation under lock and key, it would seem logically impossible to infer access through striking similarity. Thus, although it has frequently been written that striking similarity alone can establish access, the decided cases suggest that this circumstance would be most unusual. The plaintiff must always present sufficient evidence to support a reasonable possibility of access because the jury cannot draw an inference of access based upon speculation and conjecture alone."

"For example, in Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2d 893 (8th Cir.), cert. denied, 329 U.S. 716, 91 L. Ed. 621, 67 S. Ct. 46, 71 U.S.P.Q. (BNA) 328 (1946), the court reversed a finding of infringement based solely on the similarities between plaintiff's book and defendant's film. The court stated that the plaintiff herself presented no evidence that the defendant had had access to her book, and the only people to whom the plaintiff had given a copy of her book testified that they had not given it to the defendant. While the court also concluded that the similarities between the book and the film were not that significant, the result turned on the fact that "[t]he oral and documentary evidence in the record . . . establishes the fact that the defendant had no access to plaintiff's book unless the law of plagiarism permits the court to draw an inference contrary to such proof from its finding of similarities on comparison of the book with the picture." Id. at 897. Thus, although proof of striking similarity may permit an inference of access, the plaintiff must still meet some minimum threshold of proof which demonstrates that the inference of access is reasonable."

In the case of publically released codebases, the fact that they've been publically released could be sufficient to infer access (see Cholvin v. B. & F. Music Co., 253 F.2d 102 (7th Cir. 1958)). But closed source codebases would have a much more difficult time proving access.

Of course this also assumes you're relying on circumstantial evidence (access to the work combined with substantial similarity) rather than direct evidence (defendant admits to have copied the expression). See: http://skripte.kuechler-law.ch/pdf/copyr...

Funny you should mention that considering you've done exactly that, to me even. But hey. Why bring it up, right?

And being chastised for speaking my mind has everything to do with political correctness. It always amuses me how it's fine and wonderful for the left to say inflammatory things about the right, to be rude, crudely insulting, and in some cases even entirely obscene when talking about how horrible and evil the right is, but the second anyone on the right does the same it's a terrible injustice that's simply not tolerable and should never have been brought up and demands for apologies and resignations start flying.

But you're right, sidetracking into politics at this stage would be useless.

I believe that it is important to note the context in which these discussions occur: as I said, in this context, political name-calling is completely irrelevant as the issue is not in the least bit a political one so it is uselessly inflammatory to throw around words like "liberal" and "conservatives" as dirty labels. And for the record, no, I don't believe I ever said you were doing/saying something I thought was dumb because you are a conservative, along the lines of saying that all conservatives are stupid as you do about liberals with alarming regularity. But yes, I probably did say at least once that you were doing/saying something that I thought was a little dumb… (for a broad understanding of the word 'dumb', e.g. including "inappropriate")

I guess the big question is whether said material is "virtually identical" to the claiming source or not. If it's close enough to be considered so, then proof of access or not, it's going to be considered infringement (from what I can tell). In the case that you've inadvertently used a copyrighted algorithm, I don't know that there's enough room to make the distinction between "substantially similar" and "virtually identical" as there would be with just source code, though.