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
clearly understood, and there have been a lot of court cases to define
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
they will say that a person has a right to earn a living.....
Fortunately most judges will apply some amount of common sense, even
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
contaminate non-GPL code simply by having people look at GPL code is
bullshit.
No question, though, the first thing we should do, is kill all the
lawyers. (And this is now definitely off-topic for the linux-kernel
list.)
- Ted
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