Infringement risks using free/libre software

A recent article on the IP Info Blog outlined some potential risks for companies using free/libre software in the products they distribute. I have a quick response.

An entity which does not desire to disclose code or otherwise conform to copyleft obligations in products it distributes to others should be able to minimize their risk of infringement by interacting with GPL code using only standardized, royalty-free interfaces (such as POSIX for the Linux kernel). I don't think it would be unreasonable to invoke copyright law's merger doctrine when using header files which implement such an API; there are only so many different ways you can implement such a freely usable interface. This may be an argument Google might employ were it to be challenged for its distribution of Android (with the Apache license) on top of a modified version of Linux (which it continues to distribute under the GPLv2, as it's required to do).

Any other interaction would apparently involve a lot more risk, probably enough to convince such an entity that it should not use code covered by the GPL or some other "copyleft license" at all. I believe that result would not be incompatible with the intent of the authors who release their code under such licenses.

Judge Posner channels Roald Dahl

In 2004, Neil Gaiman sued Todd McFarlane for a declaration that he was co-author of a set of characters from the Spawn series. Judge Posner wrote the opinion, in what ends up being a fairly conversational fashion. The details of copyright ownership analysis are technical, but the tone of the opinion sounds a bit like he's explaining the outcome to you over a beer.*

One of the issues in the case is whether a particular character can be copyrighted at all. Some characters are generic; others are described in detail with immediately identifiable attributes (Harry Potter's scar); and most fall somewhere in between. One of the characters in dispute was known as "Medieval Spawn," a fairly generic term; that might have been an issue, but Judge Posner points out that the Lone Ranger's name wasn't widely known (it's John Reid!), but he's a recognizable character. Most amusing is the Judge's discussion of the difference between characters in books and characters presented in visual form (comics, movies, TV, etc.). After a long passage on page 661 from The Maltese Falcon describing the detective character Sam Spade, Judge Posner says:

Even after all this, one hardly knows what Sam Spade looked like. But everyone knows what Humphrey Bogart looked like. A reader of unillustrated fiction completes the work in his mind; the reader of a comic book or the viewer of a movie is passive. That is why kids lose a lot when they don't read fiction, even when the movies and television that they watch are aesthetically superior.

Apparently the actual published opinion (not the one on Google Scholar) has a picture of each character attached, each in its own appendix. I guess they were copied with permission of both parties, or their inclusion is considered fair use.

* I'm not sure if Judge Posner drinks beer or not. It's just an expression.