Why Scènes À Faire Should Apply to Command-Line Interfaces
byon January 3, 2018
Today, Conservancy joined other amici in the Cisco v. Arista case. Specifically, the amicus brief discusses why the scènes à faire affirmative defense for copyright infringement is appropriate and actually necessary regarding imitation of command-line interfaces. I hope this blog post will convince you that software freedom contributors should care about the issue.
The easiest example to understand these issues is Unix. Most of us know
the basics of Unix's user interface, which primarily consists of commands
that live in
/usr/bin, that each include various command-line options that
we've memorized. When the GNU project started, as RMS has described in his
talks, he chose to imitate this user interface. Many reasons were obvious,
but the most important one was that Unix was already an industry standard and
users already knew its interface.
At the time, no one would have considered that you'd be liable for copyright infringement merely writing some new programs — 100% from scratch — that happened to have the same names and the same command-line options that were found in Unix. That interface, in fact, has been reimplemented at least a hundred times — by many Unix vendors and by various software freedom projects (GNU of course, but also by Conservancy's BusyBox project and others). As developers, we'd be incredulous if told that GNU infringed Unix's original copyrights. But that's exactly the argument that Cisco made about Arista's imitation of Cisco's command-line interface.
I'm not a fan of either Cisco nor Arista; all the software in question is proprietary software. Indeed, GitHub, which is one of our joined amici here, produces much proprietary software around Git, and that's bothers me too. I don't like it when any company writes proprietary software to work along with FLOSS. However, I agree with GitHub and Arista that copyright restrictions should not extend too far; copyright should not stifle simple command-line interoperatiblity. Merely imitating a command-line interface of one program in another should not cause (by itself) a copyright infringement.
Now, the last part to discuss are the questions: What is an affirmative defense, and what is scènes à faire? So, to explain it roughly with as little legalese (IANAL) as possible, an affirmative defense is one that you must prove after you're accused, usually through a trial (which is what occurred here). The burden is on the Defendant to prove that affirmative defense. (By contrast, if Arista had shown that, in fact, their command-line interface bore no similarity to Cisco's, that would have been a “negating defense”. Such defenses are much more assured to win, as they don't place such a burden on the defense.)
So, what, specifically, is the affirmative defense of scènes à faire? It's a concept originally from fictional works that generally expresses this idea: “if you're going to tell this story at all, you need at least these elements”. In this example, the analogy works like this: if your users will give a router textual commands via the command-line, that user will expect certain commands to work. Cisco's commands are industry standard and expected by users, similar to those in Unix. The amicus brief argues that this is a reasonable application of scènes à faire, because there is great benefit to the public and users if such imitation is permitted on command-lines without copyright restriction. Remember, under the USA Constitution, copyright exists as an “exclusive Right to … Writings” only because such exclusive controls “promote the Progress of Science and useful Arts”. Copyright is not an absolute right of control over written works by the authors, and its tentacles must be shortened by the public interest.
Finally, I call on the Linux Foundation to publicly ask their platinum member, Cisco, to stop this aggressive litigation on an edge case of copyright. Such a request would be consistent with the Linux Foundation's public criticism of others for copyright enforcement. This case is one where we all should stand together in the interests of free innovation.
Judy Gichoya, Doctor & Developer of LibreHealth, Asks You to Support Conservancy
byon December 31, 2017
About a year ago, we announced the joining of a newly formed project, LibreHealth, as a Conservancy member project. This year, I had the opportunity to meet, at various conferences, Judy Gichoya, who is a medical doctor specializing in Radiology from Kenya, and is also a software developer on the LibreHealth project.
Judy represents so much about why we at Conservancy continue to fight for software freedom: we foster technology that everyone can examine, improve, and share, and allow people from different backgrounds — including geographically, professionally and culturally — to come together to make that technology better.
Invariably, every time I go to a doctor's office here in the USA, the staff complains (or makes an excuse) for the proprietary software they use to handle my medical data. My colleague, Karen Sandler, has researched and spoken extensively about the health dangers of proprietary software on medical devices. LibreHealth is one of many projects which seeks to solve some of these problems by creating more medical-related software that gives doctors and patients the software freedom they deserve.
Judy recorded this video to ask you to become a Supporter of Conservancy. On this last day of 2017, we all ask you to donate generously to help our work continue!
Quick update on Trademark Matter
byon December 30, 2017
We've promised transparency, and we're committed to it even when the news is annoying for us. If this proceeding weren't such a waste of time and resources, I might even be fascinated by the twists and turns that are inherent in litigation and are often new to me as a non-lawyer.
The current primary issue is that SFLC has sought to amend their initial petition with the TTAB to add a claim on fraud. Their claim is that Software Freedom Conservancy shouldn't have been allowed to register our trademark because we were aware of the SFLC trademark registration. As Karen and I stated briefly before, these claims are baseless. We will respond to SFLC's request to amend their original Petition by the TTAB's deadline of January 11.Update on 2018-01-03: We officially responded to the SFLC's request to amend their original Petition.
In the meantime, the TTAB decided, due to a procedural issue, the summary judgment motion we filed is currently moot. The TTAB indicated that we can refile for summary judgment later, after our answer is updated. This, of course, can't happen until the matter of SFLC's Petition amendment is resolved.
Yes, it's confusing and procedural. Litigation is like this. We still find all of this a waste of time and resources. We'll stay focused on our essential work for software freedom through our regular, important work for Conservancy, until the next round of SFLC's attacks — but we still hope SFLC will simply do the right thing and withdraw the petition.
UPDATE: as of 2018-08-24, the Summary Judgement motion is refiled and pending before the TTAB.
Chris Neugebauer, chair of North Bay Python, encourages you to Support Conservancy
byon December 23, 2017
Earlier this month, Software Freedom Conservancy helped North Bay Python 2017 complete an excellent Python conference focused on Free and Open Source Software for Python. As with all our member projects, they succeed because of our excellent collaboration between volunteers and Conservancy staff to make sure all the work gets done right.
In this video, Christopher Neubaugher, conference chair of North Bay Python 2017 and a Conservancy Supporter, encourages you to become a Conservancy Supporter today. And, today's a great day to do it! Your donation will be doubled by our current match campaign.