[openbeos] OBOS legal issues ?
- From: Steve Vallée <svallee@xxxxxxxxxxxxxx>
- To: <openbeos@xxxxxxxxxxxxx>
- Date: Sun, 17 Feb 2002 21:14:32 -0800
On a forum I asked any people knowing softwares laws what they think about
OBOS, and the "BeOS" trademark at Palm that can give problems in the futur.
I receive an answer from a spanish lawer specialized in Intellectual
Properties issues.
The thing is a bit long, but is very interesting. Everyone interested on the
"possibles" OBOS legal issues should take a look at this.
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By Marques
I am an Intellectual Property lawyer at Spain. As you have already pointed
out the only serious legal issues that may arise are those of the BeOS
trademark because of its possible association with OpenBeos.
In the other hand, I know the OBOS team are being very cautious with the
coding.
Copyright covers Originality, it's not a Patent system as many tend to think
(Patent covers inventions, software is explicitly excluded on all modern
copyright laws), no first to file at copyright (under the Berna Convention
there is no filing obligation) nor first to create, it is about creating
originally (not by vile copying, we spaniards say "servil"), whenever that
is done.
A great joke that fully explains the "vile" character:
Harper's new monthly magazine, November, 1873. Editor's Drawer:
"Tony [The Earl of Shaftesbury, making a speech at Exeter Hall] was asking
the children a variety of questions of a Scriptural nature, to which he had
received very satisfactory answers. Just as he was concluding, he addressed
a girl somewhat older than the rest, and among other things inquired, `Who
made your vile body?` `Please my lord`, responded the unsophisticated girl.
`Betsy Jones made my body, but I made the skirt myself!`"
See? She made the skirt herself, no vile deed, full copyright, just as OBOS,
Betsy's descendants now work at Palm Inc. The Lord copyright is another
tale.
The key is creating, if you create something similar to do the same thing
there is no infringement, copyright does not cover functionality, it covers
expression. Of course the expression is not an strict concept, for you may
not elude copyright by mere accidental alterations, that would be
fraudulent.
If I were to look for possible infringements of the BeOs copyright I would
try to argue one of these two:
- OBOS is some kind of BeOs "derivative work" without authorization.
- OBOS has done illegal and unauthorized BeOs reverse engineering.
Mine would be the proof burden.
Derivative Works
I am following the OBOS development, and by what I see it is being a clean
cloning, starting by the NewOS kernel, the app-server, the media kit, the
file system, translation kit, everything is being coded from scratch or
reused from open software. That kind of coding is no mere accidental
alteration, it is the complete creation of a hole new system designed to
function on a similar manner to BeOS.
It is A NEW ORIGINAL CREATION. It is not a derivative work, for OBOS have
not taken to "derivate" the code they don't have. The most common cases of
derivative works are translations, in order to translate you need the
original text.
Reverse Engineering
Reverse Engineering is the "star" of the USA DMCA (Digital Millenium
Copyright Act), and as you already know the rest of the world follows. The
USA jurisprudence about it used to allow many cases of fair use, specially
under Interoperability cases:
Atari vs Nintendo, Fed. Cir. 1990
Sega vs Accolade, 9th Cir. 1992
Bateman vs Mnemonics, llth Cir. 1996
Needless to say after the DMCA, the legal guideline is DON'T EVEN TOUCH IT,
the fair use is now as narrow as an EULA. The mere possession of SoftIce is
Evil.
So what? So I don't think Palm would get into a reverse engineering battle
versus an open source OS, in a similar way (not an identical manner) MS
doesn't go after WINE, it would be very nasty, very unpractical, not easily
probated, and even the `interoperability fair use` may after all prevail in
Court.
I believe Apple would litigate, if they are nuts enough to order the
removing of Apple-like theme screenshots, what would they not do? THEMES!!!
How third class of you Steve! (his expression). Fortunately Apple themes are
`really` only banned for only a 1-2% of desktop users. And then talk about
porting OSX to x86 as the great thing! (not for computing freedom), to
worse.
Hehehe! can't help mentioning the Redmonds, have you read the legal papers
at Lindows.com? Go read them, exactly what I was saying but better, much
better!!! Those rejected PTO applications are BEAUUUUUUUUTIFUL!!! And I love
the Microsoft Computer Dictionary definition of "Windows", EXHIBIT A is
gold. `Good Morning MS I'll be your Server today!` (LindowsZilla).
Concerning the trademark point, in the worst of cases OBOS would make a
great trademark, like OBOS NOT BEOS, this is not recursive but equally
understood. No damages would result before a legally protocoled notification
(a formal one) asking to stop using the OpenBeOS trademark. And as said,
OBOS would have no problem in my opinion. Open and Beautiful.
Excellent work at OpenBeos.
GO OBOS!!! GO!!!
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