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How the 10th Circuit Defines Derivative Code |
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Sunday, June 29 2003 @ 09:20 PM EDT
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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." [PDF] 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 warrant 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, although 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.
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Authored by: Anonymous on Monday, June 30 2003 @ 10:36 AM EDT |
It would seem that, following that interpretation, AIX is indeed a derivative of
System V (which IBM would not deny) but that the JFS source code cannot possibly
be such, since after the A & F parts the resulting "kernels" are wholly
dissimilar. One has to wonder if SCO have actually looked up the precedent in
their own state? Dr Stupid[ Reply to This | # ]
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Authored by: Anonymous on Monday, June 30 2003 @ 08:01 PM EDT |
Taken as a whole, AIX is a derivative of System V. But NUMA, RCU, & JFS were
developed by IBM and implemented in AIX. They are not based on anything which
existed previously in the System V code. It seems that SCO's contention is that
by implementing them in AIX that this makes them somehow derivative works. Am I
missing something? If a judge rules that IBM property implemented in AIX is not
automatically derivative of the System V code, doesn't everything else go up in
smoke? Greg T Hill[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, July 01 2003 @ 03:10 PM EDT |
If the judge rules that way, yes, it would be the end of the derivative code
issue, but there are other contract-related claims. I'll be writing about that
as soon as I can get it done.
If you have facts and proofs on the sentence "But NUMA, RCU & JFS..." please
share. RCU is pretty clear, but the others? pj[ Reply to This | # ]
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