Date: Sat, 2 Dec 2000 22:11:46 -0700
From: "Jeff V. Merkey" <jmerkey@vger.timpanogas.org>
To: "Theodore Y. Ts'o" <tytso@MIT.EDU>
Cc: Alan Cox <alan@lxorguk.ukuu.org.uk>, pavel@suse.cz,
        kernel@blackhole.compendium-tech.com, hps@tanstaafl.de,
        linux-kernel@vger.kernel.org, jmerkey@timpanogas.org
Subject: Re: Fasttrak100 questions...
Message-ID: <20001202221146.A21761@vger.timpanogas.org>
In-Reply-To: <20001202182126.A20944@vger.timpanogas.org> <200012030342.WAA17517@tsx-prime.MIT.EDU>
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In-Reply-To: <200012030342.WAA17517@tsx-prime.MIT.EDU>; from tytso@MIT.EDU on Sat, Dec 02, 2000 at 10:42:29PM -0500
Sender: linux-kernel-owner@vger.kernel.org

On Sat, Dec 02, 2000 at 10:42:29PM -0500, Theodore Y. Ts'o wrote:
>    Date: Sat, 2 Dec 2000 18:21:26 -0700
>    From: "Jeff V. Merkey" <jmerkey@vger.timpanogas.org>
> 
>    Under this argument, it is argued that the engineer who had source 
>    code access "inevitably used" negative knowledge he gained from 
>    his study of the Linux sources.  Absent the vague descriptions of
>    what a "derivative work" is in the GPL, it could be argued that 
>    conversion of any knowledge contained in GPL code is a "derivative
>    work".  
> 
> That's bullshit.  Copyright law very clearly states that it protects the
> fixation of an idea in a medium, and that copyright explicitly does not
> protect the idea itself.  The concept of what is a derived work is very

State Laws may be controlling if they involve contracts.  It has nothing 
to do with Copyright Law, but with the terms of license for someone's
code.  I've seen this crap applied.  I've even been on the receiving
end of it, and been enjoined from working on PUBLIC GPL CODE for 
18 months because of an AGREEMENT and not copyright laws.   

> clearly understood, and there have been a lot of court cases to define

Under inevitability, the neural impules in your brain can be ruled 
to be a derivative work.  Believe me, I am not arguing for the doctrine,
but informing you of it's existence and the broad scope it has 
in IP cases.  

> this precedent.  (My understanding is that in realm of music 7 notes in
> sequence, if copied, is prima facie evidence that there is a derived
> work.  Not 5 notes, and not 8 notes, but seven notes.  Gotta love those
> lawyers at work.  Aren't you glad they settled that?)
> 
>    Personally, I think the doctrine is one of the most evil fucking things
>    in existence, legal opponents call it "the doctrine of intellectual
>    slavery" because it has the affect under the law to be able to convert
>    simple NDA agreements into non-compete agreements, and I've seen it 
>    used this way.
> 
> That's a different matter.  If you use NDA and Trade secret law, then
> yes, might be able to enslave programmers using such a law.  However
> most courts have strict limits to how far they will take non-compete
> arguments, and if an NDA turned into a non-compete, past a certain point

The legal limit is 18 months in most states.  This "I have a right to 
make a living argument" only holds water if the other side refuses to
post a bond.  If they post a large enough bond, a court WILL rule 
in favor of inevitability if they make a good case for it.  (The 
bond required to keep me from programming for 18 months cost Novell 
$10,000,000.00.)

> they will say that a person has a right to earn a living.....
> Fortunately most judges will apply some amount of common sense, even

US Judges are pontius pilate's all -- with hearts as black as the robes
they wear.  They don't care about you, or your rights.  Remember, almost
all judges are lawyers who are too old or to incompetent to practice law
so they get themselves an appointment.  Most of them were crooked lawyers
who went into politics (which is how a lawyer gets made into a judge, BTW,
he goes into politics).

> despite their law school training.  In any case, the GPL doesn't involve
> NDA's or Trade Secrets, so saying that this doctrine could be used to

It has to do with contract law, which is what the doctrine of 
inevitability is all about.  Trade secrets have nothing to do 
with it, it's a question of knowledge gained via access to 
code through some form of agreement.  In employment 
situations, it's a trade secret agreement, here in Linux, it's 
a GPL agreement.

> contaminate non-GPL code simply by having people look at GPL code is
> bullshit.

I argued that looking at Novell Public Code under their form of GPL
would not contaminate -- a court ruled otherwise.  The court ruled 
that under inevitability, public code on Novell's website and 
slides presented at Brianshare, even though they were public, 
had the affect of contaminating our internal projects under 
this doctrine.  You don't want to kill all the lawyers, you want to 
kill all the judges -- it was a judge that came up with this 
inevitability doctrine in the first place....

:-)

Jeff


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