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Sunday, June 29, 2003
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How the 10th Circuit Defines Derivative Code
If you want to know how the 10th Circuit, which is the circuit Utah falls into, defines derivative code, you can read Dan Ravicher, Esq.'s paper, "Software Derivative Work: A Circuit Dependent Determination."
According to this analysis of the different definitions the different federal court circuits follow, the 10th Circuit follows the AFC test, abstraction, filtration, comparison:
" Under the AFC test, a court first abstracts from the original program its constituent structural parts. Then, the court filters from those structural parts all unprotectable portions, including incorporated ideas, expression that is necessarily incidental to those ideas, and elements that are taken from the public domain. Finally, the court compares any and all remaining kernels of creative expression to the structure of the second program to determine whether the software programs at issue are substantially similar so as to warrent a finding that one is the derivative work of the other.
"Often the courts that apply the AFC test will perform a quick initial comparison between the entirety of the two programs at issue in order to help determine whether one is a derivative work of the other. Such an holistic comparison, althought not a substitute for the full application of the AFC test when, as discussed below, only certain components of the original program are compared to the second program. If such a pattern is revealed by the quick initial comparison, the court is more likely to conclude that the second work is indeed a derivative of the original."
Details on each step of the process are in the article.
9:20:30 PM 
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Declaratory Judgments --
How to Get a Quick Answer from a Judge
Let's imagine the CEO of a company has been going around telling the media that it intends to sue you. Some time goes by, and the threats get louder and more frequent. Yet, the company doesn't file any case but keeps saying it is going to eventually. Then you get a threatening letter, notifying you that you are infringing on his IP rights and saying you'd better pay for a license. You don't want to do that, and you don't think you are infringing. In this hypothetical situation, do you have to just sit and wait for the other shoe to drop or can you take the initiative and go to court yourself, rather than waiting to be sued?
In certain limited circumstances, you can take the initiative. There is something called a declaratory judgment. You go to court and in essence say to the judge: This company is going to sue me and I need our rights with respect to this dispute settled asap, so this cloud over my company's head doesn't ruin my business. If the judge accepts the dispute as one he wants to settle, he can, and after hearing both sides he can issue a declaratory judgment, in which he "declares" what is what and exactly what each party's rights are.
While there are no enforcement powers associated with a declaratory judgment, sometimes that doesn't matter. For example, Roe v. Wade involved a declaratory judgment that ended up with abortion statutes being declared unconstitutional. Yes, that Roe v. Wade. A pregnant woman (Roe) brought a class action, challenging the constitutionality of Texas' abortion law. A doctor who was facing two state abortion prosecutions under the statute also intervened. The court said they were entitled to declaratory relief, and the court declared the abortion statute void. It was appealed and the rest, as they say, is history.
Now, a judge doesn't have to hear a request for a declaratory judgment. He has discretion. It's an enabling statute, not one that confers rights on you, the litigant. Your case has to fit into the confines of the Declaratory Judgment Act, 28 U.S.C. §§2201 -02. States have equivalent statutes, such as Calif.Code.Civ.Proc. § 1060-1062.5.
What confines? First, you have to have an actual "controversy" in the constitutional sense. Basically, that means it isn't a hypothetical problem and it isn't moot, meaning the court must be able to settle your problem with a declaratory judgment. And you must have a real controversy, meaning you really have a reasonable apprehension of being sued. If you fit within those confines, and your lawyer can tell you if you seem to -- it's the "actual controversy" part that can be tricky -- your lawyer can ask the court for a declaratory judgment that declares that you are not guilty of infringing the hypothetical CEO's precious hypothetical IP.
Here's US Code Title 28, Ch 151, Sec 2201, the Declaratory Judgment Act. And here is the definition from Cornell or you can just click on the link to Law. com's dictionary, on the left. Here's a tutorial on declaratory judgments.
Of course, we're talking hypothetically here, but suppose we now return to reality. I was thinking that maybe Mr. McBride started backing off and saying they probably won't be suing any Linux distributors precisely because it dawned on somebody in Utah that declaratory judgments might be forthcoming. Rather than let a quick resolution occur that way, they say, "nah, we don't want to ruin the GPL and destroy Linux" in the hope that no one will be able to meet the "reasonable apprehension of suit" requirement.
Then, after they, in their dreams, win the IBM case, they just change their tune again and decide to sue Linux distributors after all. Changing their minds is one thing they have definitely shown they can do. Of course, this could all be in my imagination, too, couldn't it?
1:28:32 AM
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