K I Hyams wrote:Further superficial skimming of web pages led me to the tentative conclusion that the chances of this case ever arriving in court are remote; the FSF appear more interested in holding a line, rather than establishing a new one and Rajlich will be advised to avoid going to court at all costs.
Reading the Rybka forum, the advice doesn't seem to run in that direction.
turbojuice wrote:This seems like bad news for Vas, though not severely so. If it is decided that Rybka falls into a similar category, then since Fruit is free, it would seem like potentially offending versions like Rybka 1.0 Beta (pretty difficult to place 2.3.2a into this group) would either have to have their source code released or a "clean" version would need to be released, or perhaps even some damages (probably relatively small) awarded to Fabien concerning the 1-series release.
My opinion that any court case would end up with "percentages" being the main focus of dispute. I have guessed it could be anywhere from 10-90%. Note that FL had contract talks with Convekta in 2005, and a contract was in the final preparation stage when Rybka 1.0 Beta appeared. In this regard, it is the copyright holder's unique right to prepare derivative works. Also, the examples of dual-license programs show that one can make money out of "free[dom] software". When I first spoke with him, FL was quite particular
not to judge Rybka's progress beyond Fruit 2.1 simply by Elo strength, as he himself knew that this was feasible simply by optimising the code and tuning the numbers [though in later Rybka versions, more was done than just this]. He himself (as was his prerogative as the copyright holder) chose to develop Fruit partially in that direction, and partially in the direction of user-friendliness.
The FSF is rather clear that one cannot escape copyright infringement and/or GPL compliance by simply "removing links" (e.g., making R3 the demo version). You either comply with the GPL [providing source (under their terms) for anything you have distributed], or after many months they give up and call the lawyers. They are probably willing to accept source code from a later Rybka version if that for R1-R232a are not extant.
Rybka 2.3.2a uses much the same evaluation function as Rybka 1.0 Beta [and pre-LK R2.x are even closer to R1]. I don't see how one can claim that R232a doesn't fall into the same class as R1 for "copyright infringement", though the percentage should indeed be somewhat lower. Another aspect is that the "name-recognition" (e.g., winning the 2007 WCCC) of Rybka came about via Rybka versions that are allegedly Fruit-derivative, gaining a marketing advantage.
Lukas Cimiotti wrote:In that case any UCI engine should be considered a clone of SMK's Shredder.
This is a
non sequitur. I see no logic behind this statement. It is like arguing that because art books use a standard convention for referencing works, thus the rest of their content can be considered "cloned". The UCI input/output have little to do with the Fruit/Rybka issue.
Nick wrote:Whelan v Jaslow is desperation on the part of the attack team.
It is good to know that I am part of this imaginary "attack team". [And you wonder why I don't post on that forum?] As I stated previously Whelan versus Jaslow was partially modified via the later AFC cases.
Nick wrote:Rybka contains sufficient new expression over and above that embodied in Fruit to satisfy the law of copyright's requirement for originality.
No example of such new expression is given by Nick, let alone why it might suffice. Furthermore, when speaking with Dan Bernstein a few months ago, he opined that "transformative value" was almost never a significant issue in a binary innocent/guilty, but rather courts were more apt to determine what percentage of value the transformation entailed.
Nick wrote:The attack team are wheeling out an ancient ruling that does not apply in modern times and certainly not to this case. There is a good article on the dangers of SSO here:
Again Nick seems to refer to something imaginary. It is a bit odd that he refers to a 1991 article when speaking of "modern times" (note that AFC was in 1992). He gives no basis on why (or what parts of) Whelan versus Jaslow should not apply to this case [though I agree that AFC is more relevant]. If he is merely following
Computer Associates v. Altai (which introduced AFC to overcome criticisms of some parts of Whelan/Jaslow), one can note that a "clean room" was used therein, and that the program was found to have few (if any) non-literal protectable elements. Both of these elements played a role in the decision.
To extend the analysis of how to interpret Whelan (again, just because parts of it are subject to criticism, the whole cannot simply be dismissed):
Nimmer wrote:[t]he crucial flaw in [Whelan’s] reasoning is that it assumes that only one ‘idea,’ in copyright law terms, underlies any computer program, and that once a separable idea can be identified, everything else must be expression.
Nimmer is essentially noting that something so broad as the idea of "a program to play chess" is subject to many expressions, and thus not subject to copyright (as it might be if the "idea" were so specified as to have only one expression). In the case at hand, I would argue the expression of the ideas of Fruit 2.1 (particularly in the evaluation function) is substantially similar to the expression of them in Rybka 1.0 Beta. There are many ways of implementing chess knowledge, and Rybka 1.0 Beta (and to a lesser extent R232a) chooses one that is overly close to that of Fruit 2.1.
Here are some relevant parts of the AFC decision:
Computer Associates v. Altai wrote:CA argues that, despite Altai’s rewrite of the OSCAR code, the resulting program remained substantially similar to the structure of its ADAPTER program. As discussed above, a program’s structure includes its non-literal components such as general flow charts as well as the more specific organization of inter-modular relationships, parameter lists, and macros. In addition to these aspects, CA contends that OSCAR 3.5 is also substantially similar to ADAPTER with respect to the list of services that both ADAPTER and OSCAR obtain from their respective operating systems. We must decide whether and to what extent these elements of computer programs are protected by copyright law.
In ascertaining substantial similarity under this approach, a court would first break down the allegedly infringed program into its constituent structural parts. Then, by examining each of these parts for such things as incorporated ideas, expression that is necessarily incidental to those ideas, and elements that are taken from the public domain, a court would then be able to sift out <23 USPQ2d 1253> all non-protectable material. Left with a kernel, or possibly kernels, of creative expression after following this process of elimination, the court’s last step would be to compare this material with the structure of an allegedly infringing program. The result of this comparison will determine whether the protectable elements of the programs at issue are substantially similar so as to warrant a finding of infringement. It will be helpful to elaborate a bit further. [...]
Note that this court ended up
agreeing that a program's structure is copyrightable [in general], but
disagreeing concerning the "list of services" part (being more utilitarian -- the same appears true with "organisational" aspects). They concluded that OSCAR (being essentially an adapter program) contained little if any protectable expression beyond the most literal (see the "Evidentiary Analysis" section). I doubt the same would apply to computer chess programs, and indeed the court decision indicates that the specifics are of great import:
[...] We emphasize that, like all copyright infringement cases, those that involve computer programs are highly fact specific. The amount of protection due structural elements, in any given case, will vary according to the protectable expression found to exist within the program at issue.
Ray wrote:So, why is Open Office, Libre Office allowed to exist ? They are functional clones of Microsoft Office in many respects.
This is similar to the statement of Lukas Cimotti, though a little less brusque. Making fine distinctions is quite important. There are many differences with (say) the Apple/Microsoft, Lotus/Borland, and OO/MO situations, most of which are at best only partially relevant to Rybka/Fruit. If one makes [nearly] a functional clone of Rybka via RE (e.g. Strelka), does it thus not infringe copyright? At issue is
what aspects of MO (or a look-and-feel GUI) are copyrightable, and similarly
what aspects of a computer chess program are. The answers might well be quite different, and simply using the word "functional clone" for each could elide many underlying aspects (e.g, whether a "clean room" was used, whether the "code" [nonliteral included] was copied, or whether just the design was -- and what aspects of the "design" are protectable, etc. -- there's a reason why copyright law in general [and IT copyright law in particular] is complicated).
Quoting already Computer Associates v. Altai in this regard (though of course the logic is amplified in the later decisions) on the scope of their decision:
As a caveat, we note that our decision here does not control infringement actions regarding categorically distinct works, such as certain types of screen displays. These items represent products of computer programs, rather than the programs themselves, and fall under the copyright rubric of audiovisual works. If a computer audiovisual display is copyrighted separately as an audiovisual work, apart from the literary work that generates it (i.e., the program), the display may be protectable regardless of the underlying program’s copyright status. See Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855 [213 USPQ 443] (2d Cir. 1982) (explaining that an audiovisual works copyright, rather than a copyright on the underlying program, extended greater protection to the sights and sounds generated by a computer video game because the same audiovisual display could be generated by different programs). Of course, the copyright protection that these displays enjoy extends only so far as their expression is protectable. Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 209 [9 USPQ2d 1322] (9th Cir. 1988). In this case, however, we are concerned not with a program’s display, but the program itself, and then with only its non-literal components. In considering the copyrightability of these components, we must refer to venerable doctrines of copyright law.
. Of course it's okay for them to haul insults at Bob and/or those standing for ethical, moral, & lawful values. Yep, their idea of "constructive" debate. And they wonder why Mark, Zach etc won't post in their forum 