Subject: Re: SCO Drops Linux, Says Current Vendors May Be Liable (fwd)
From: Greg Broiles <gbroiles@parrhesia.com>
Date: Fri, 16 May 2003 17:52:14 -0700

On Fri, May 16, 2003 at 04:07:45PM +0100, Karsten M. Self wrote:
> 
> To prove illegal copyright infringment, SCO must demonstrate three things:
> 
>   - A substantially similar work.
>   - A derivation line showing how copying of the allegedy infringed work
>     to the alleged infringing work occured.  Note that this must be
>     copying of the expression itself, not of the ideas, methods,
>     mechanism, or information contained in the original work.
>   - Demonstration that the copying was infringing.  That is:  not
>     expressly authorized by the copyright holder of the allgedly
>     infringed work, or permitted under one of numerous exceptions to
>     exclusive rights of authors (17 USC 107-122 lists fifteeen such
>     exemptions).

As recently as _Feist Publications v. Rural Telecom_ 499 U.S. 340 (1991),
a plaintiff needed to establish two elements for a prima facie case of
copyright infringement:

"(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are original."

Your summary above goes beyond what's literally necessary into
the realm of what would make for a stronger case, as well as shifting
some of the defendant's burdens of proof (the existence of valid 
defenses such as fair use or license) onto the plaintiff, which isn't
consistent with how the legal system works. 

-- 
Greg Broiles
gbroiles@parrhesia.com