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Why Scènes À Faire Should Apply to Command-Line Interfaces

by Bradley M. Kuhn on 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 /bin and /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.

Tags: conservancy, law

SFLC Files Bizarre Legal Action Against Its Former Client, Software Freedom Conservancy

by Conservancy's Staff on November 3, 2017

About a month ago, the Software Freedom Law Center (SFLC), the not-for-profit law firm which launched Conservancy in 2006 and served as Conservancy's law firm until July 2011, took the bizarre and frivolous step of filing a legal action in the United States Patent and Trademark Office seeking cancellation of Conservancy's trademark for our name, “Software Freedom Conservancy”. We were surprised by this spurious action. In our eleven years of coexistence, SFLC has raised no concerns nor complaints about our name, nor ever asked us to change it. We filed our formal answer to SFLC's action yesterday. In the interest of transparency for our thousands of volunteers, donors, Supporters, and friends, we at Conservancy today decided to talk publicly about the matter.

SFLC's action to cancel our trademark initiated a process nearly identical to litigation. As such, our legal counsel has asked us to limit what we say about the matter. However, we pride ourselves on our commitment to transparency. In those rare instances when we initiated or funded legal action — to defend the public interest through GPL enforcement — we have been as candid as possible about the circumstances. We always explain the extent to which we exhausted other possible solutions, and why we chose litigation as the last resort.

Currently, this trademark action is in its early stages. SFLC filed a petition on September 22. Yesterday, we provided an answer that lists defenses that we plan to use. However, we welcome press inquiries and interviews on the subject and will do our best to respond and engage in public discussion when possible.

We are surprised and sad that our former attorneys, who kindly helped our organization start in our earliest days and later excitedly endorsed us when we moved from a volunteer organization to a staffed one, would seek to invalidate our trademark. Conservancy and SFLC are very different organizations and sometimes publicly disagree about detailed policy issues. Yet, both non-profits are charities organized to promote the public's interest. Thus, we are especially disappointed that SFLC would waste the precious resources of both organizations in this frivolous action.

Meanwhile, there is now widespread agreement in the FLOSS community, embodied both in the FSF's and Conservancy's Principles of Community-Oriented GPL Enforcement and the Linux Kernel Enforcement Statement, that FLOSS community members view “legal action as a last resort, to be initiated only when other community efforts have failed to resolve the problem.” We at Conservancy have always adhered to this fundamental principle, not only in GPL enforcement, but in all endeavors. In stark contrast, SFLC made no efforts — over the last eleven years since Conservancy was formed, nor in the last five years since we registered our name as a trademark — to express any concerns about our name, or a desire for us to change our name. We first learned of SFLC's complaints from this surprise attack of legal action.

SFLC's actions indicate that while they have provided legal services to some members of our FLOSS community, they do not view themselves as members of our FLOSS community, nor consider themselves bound by our community's norms. We are prepared to defend our brand, not just for ourselves but for our many member projects who have their home at Conservancy, our Outreachy diversity initiative, and our collective efforts to promote FLOSS. Nevertheless, we hope SFLC will see the error of their ways and withdraw the action, so that both organizations can refocus resources on serving the public.

Tags: conservancy, law

How the TC Heartland decision helps free and open source software

by Tony Sebro on May 23, 2017

Yesterday, the United States Supreme Court published a decision that is likely to make it harder for patent holders to use frivolous infringement lawsuits to extort settlement fees. In the TC Heartland LLC v. Kraft Foods Group Brands LLC case, the Court ruled that patent holders can only file suit in the jurisdiction where the alleged infringer is incorporated. Prior to TC Heartland, US patent holders had more flexibility to file suit in multiple jurisdictions, and as a result would often select seemingly unrelated jurisdictions for strategic reasons.

The Eastern District Court in Texas is, by far, the most popular venue in the United States for patent holders to file suit, due to its reputation for plaintiff-friendly judges and aggressively brisk (and, therefore, cheaper) litigation schedules. The United States federal court system has ninety four district courts, yet over a third of all patent litigations filed in the United States in the first quarter of 2017 were filed in the Eastern District. And, traditionally, the overwhelming majority of such cases filed in the Eastern District have been brought by non-practicing entities ("NPEs"; unaffectionately known as "patent trolls") — patent holders who enforce patents without being engaged in the business of selling the inventions disclosed in the patents. The media has covered the remarkable growth of a cottage industry centered around patent litigation in Marshall, Texas, the small town where the Eastern District is located. Many NPEs have built their business models around the economies of scale and efficiencies of pushing frivolous suits through this single venue. Hopefully, the fresh burden of having to file suit on a defendant's "home turf" will reduce the volume of nuisance patent litigation — and disrupt the business models that fund it.

As a public charity, Conservancy is not a traditional target for NPEs: we don't generate the kind of product-related revenue streams that NPEs typically hold for ransom in exchange for quick settlement payments. That said, we acknowledge that the threat of NPE litigation casts a shadow on the entire technology sector, including on free and open source communities. We believe that community-vetted free and open source licenses are sufficient to create a pool of explicit and/or implied patent licenses between contributors and users. But, that hasn't stopped many a nervous in-house counsel from using layers of extraneous paperwork to reduce the patent exposure they think participating in a free and open source software project may create. We hope that the TC Heartland decision sends a signal to would-be NPEs that the US judiciary will no longer be as complicit in facilitating nuisance patent litigation. We also hope that software developers and users of all types are encouraged by the decision, and are less likely to allow fear, uncertainty, and doubt around NPE patent exposure chill their participation in free and open source software communities.

Tags: patent, law

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