Re: [boost] Legal problem with Stackoverflow contribution under the "Creative Commons Attribution Share Alike 3.0" license

Subject: Re: [boost] Legal problem with Stackoverflow contribution under the "Creative Commons Attribution Share Alike 3.0" license
From: Niall Douglas (s_sourceforge_at_[hidden])
Date: 2018-02-19 23:48:43

On 19/02/2018 22:57, Tim Song via Boost wrote:
> On Mon, Feb 19, 2018 at 3:41 PM, Niall Douglas via Boost
> <boost_at_[hidden]> wrote:
>> But it's a non-point. If you follow the full discussion of the reuse of
>> snippets on stackoverflow, reuse of small pieces of code which are not
>> self standing programs, or functionality in themselves, is not copyright
>> infringement in most jurisdictions. cf
>> https://en.wikipedia.org/wiki/Oracle_America,_Inc._v._Google,_Inc. after
>> all.
> 
> In which the courts found copyright infringement over a nine-line
> literally copied rangeCheck function.

That was the jury's verdict in the first case. The judge overrode that
in a ruling which can be read at
http://www.groklaw.net/pdf3/OraGoogle-1202.pdf. In that he lays out the
many cases where copyright cannot be infringed on a snippet, and the
importance of originality as far as copyright is concerned.

So, for example, a snippet cannot be original if there is only one way
of calling a set of system APIs to achieve a goal, and copy-and-paste
identicality is not important for copyright infringement, but rather it
is the originality in the sequence of steps. So even if Peter takes that
snippet and rewrites it, if he duplicates the sequence exactly, it's the
same snippet as far as US IP law is concerned.

Some code on stackoverflow does not call system APIs, and could have
originality in its algorithm or design. Those snippets you don't reuse
without permission. But if it mostly calls system APIs, its originality
is highly constrained, and it now falls under fair use.

The snippet in question calls a lot of system APIs. It is hard to
implement very differently without replacing the calls to those system
APIs with inferior ones. That's fair use so.

> (The district court also later ruled that the jury could have validly
> found for either side on the fair use defense for the APIs. And the
> jury's fair-use verdict is still under appeal, so it's hardly
> "established case law".)
> 
> This copying seems by far closer to the rangeCheck copying than the APIs.

If you read the court's judgement, you will find that the rangeCheck
issue stemmed from failure to sufficiently document original source,
hence the importance of etiquette to comment where you get borrowed code
from. The same programmer wrote the same code twice in two separate
situations nothing to do with Android, and due to how open source works,
one of those copies eventually ended up in Android through no design nor
intent of anybody. That's why the court found a technical infringement,
but with no damages, especially as once the infringement had been
noticed, it was immediately rectified.

This is what I've been saying: you can't make pristine open sourced IP.
Can't be done. I've spotted on more than one occasion code on SO
matching that of Boost. I suspect there's plenty of it, and nothing
anyone can do about it. Even if it were all purged through a herculean
effort now, a few years from now it would be back to the situation now.
IP leaks across boundaries, so channel not damn the flow.

Better therefore to attribute sources, cite your references, don't steal
but instead borrow. Then if an IP claim lands, you've done everything by
the book. Nobody did anything malicious like take somebody else's code,
*and hide where they got it from* which is not a technical infringement,
but a malicious one with intent to deceive.

Everything I said above refers to very small pieces of code where any
originality is hard to determine. Anything larger, or obviously novel,
is copyright to its author and is not being referred to above.

Niall

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