Subject: Re: SCO Drops Linux, Says Current Vendors May Be Liable (fwd)
From: "Karsten M. Self" <>
Date: Sat, 17 May 2003 05:28:16 +0100

on Fri, May 16, 2003 at 05:52:14PM -0700, Greg Broiles ( wrote:
> 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:

I'm not speaking of justifying taking the case to court, I'm referencing
winning it.

Feist, in the case cited, won on grounds that copyright doesn't extend to
mere compilations of fact.  In my taxonomy, that would be a failure on
point three -- there can be no copyright infringement of a work not
protected by copyright.

Another example might be Sega v. Accolade, in which the clear copying of
a short string (< 50 bytes) from a Sega work by Accolade was excluded by
Fair Use.

> 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. 

That wasn't my meaning, though I may have been less than clear.

In the presence of an affirmative defense (eg:  fair use, prior
authorization), the plaintiff would have to demonstrate, with a
preponderance of the evidence (in a civil case such as SCO v. IBM) that
no authorization or exception to exclusive rights existed.


Karsten M. Self <>
 What Part of "Gestalt" don't you understand?
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