Re: Time to put up or shut up!

[Hyman Rosen]

On 4/15/2010 6:26 PM, RJack wrote:
> To institute the Best Buy et al suit, the plaintiff was required by
> statute to identify the allegedly infringed work's registration:
>
> "§ 411 · Registration and civil infringement actions
> (a) Except for an action brought for a violation of the rights of the
> author under section 106A(a), and subject to the provisions of
> subsection (b), no civil action for infringement of the copyright in any
> United States work shall be instituted until preregistration or
> registration of the copyright claim has been made in accordance
> with this title."

It's amazing that you can quote the statute and still misread it
so badly! The statute requires that the work be registered, not
that the suit identify the registration.

> The plaintiffs identified the registered work in the Best Buy et al
> complaint:
>
> "31. Mr. Andersen is, and at all relevant times has been, a copyright
> owner under United States copyright law in the FOSS software program
> known as BusyBox. See, e.g., “BusyBox, v.0.60.3.”, Copyright Reg. No.
> TX0006869051 (10/2/2008)."

All versions of BusyBox made after Erik Anderson began modifying it
are derivative works of Erik Anderson's work, and he therefore owns
copyright on all of them. It is possible that this court requires
that every version of a work be registered separately, in which case
the court will observe that the suit is about an unregistered version
and may dismiss it. In that case, the plaintiffs can register the
specific versions in question and refile the case. The court may also
just give the plaintiffs time to register and then amend the complaint.

> To claim even a *hypothetical* compliance due to the SFLC filed lawsuit,
> you must demonstrate a working link to the source code to the GPL
> covered work that was registered and allegedly infringed.

<http://www.softwarefreedom.org/resources/2009/busybox-complaint-2009-12-14.pdf>
This is simply, and even stupidly, false. The lawsuit claims
infringement of BusyBox in general, not of the specific version
that Erik Anderson has registered. The compliance demanded by
the SFLC is with the GPL, which requires distribution of source
code for the binary version the defendants copied and distributed.

It is possible that the court will find that the suit is deficient
in one way or another, possibly including the registration issue,
but there is no point in willfully misreading what the suit demands,
since it is easy to read the suit and see what it says.