[xdebug-general] Re: Is the xdebug's non-free license necessary?

From: Michael K. Edwards <m.k.edwards[@]gmail.com>
Date: Tue, 21 Dec 2004 10:24:47 -0800

> > The trouble, I think, is that "derived product" has a legal meaning
> > (in the context of copyright) contrary to your common-sense
> > interpretation. Anything other than an exact copy of the source code
> > you distribute (or, if you distribute binaries, exact copies of them)
> > -- even an unpatched but independently compiled binary -- is a
> > "derived product" in this sense.
> Which country is this in? I doubt that this works the same way all over
> the world. Any links to dutch or even european jurisprudence?

As others have pointed out, it's actually "derived (or derivative)
work" that has a legal meaning in the context of US and UK copyright
law. I don't know about Dutch jurisprudence, but here's the relevant
article from the Berne convention
(http://www.austlii.edu.au/au/other/dfat/treaties/1978/5.html ), which
doesn't use the "derived work" formula anywhere:

Article 12. Authors of literary or artistic works shall enjoy the
exclusive right of authorizing adaptations, arrangements and other
alterations of their works.

> > There's a legal instrument for control over other people's use of a
> > name -- it's called a trademark. ... And in any case,
> > adding that clause doesn't give you any legal recourse that you didn't
> > already have under the legal definition of a "confusingly similar"
> > trademark. (I think -- IANAL, and I'm going on US/California law.)
> There is no trademark for PHP for the simple reason that it is WAY too
> expensive to have a worldwide trademark. I can not afford to have a
> trademark. Because of that, I will keep my license clause as I do not
> want people to make a derivate called "Xdebug+" for example.

At least in many US jurisdictions, a trademark needn't be registered
to be valid -- if it has demonstrably been used in trade, it can be
enforced against another party even if that party has since registered
it. (Registration may be required preparatory to enforcement in
court, though, and trademark can be lost by failing to defend it.)
See Planetary Motion v. Techplosion 2001
(http://www.law.emory.edu/11circuit/aug2001/00-10872.man.html ) for a
US appellate court case in which the registered owner of a trademark
sought out and purchased a prior owner's rights in order to strengthen
an infringement claim against a third party.

> Also, I do not care a single bit about whatever law some state in the US
> has, it's not of my concern.

I cite US/California law because it's easiest for me to research.
Unless a case hinges on peculiarities of state law (never the case
when we are talking about copyright or patent, and rarely when we are
talking about contract and trademark topics that are covered by the
Universal Commercial Code), case law created in an appellate
jurisdiction is generally recognized by that court's "sister
circuits", i. e., the entire US legal system.

Outside the US is of course another story; compare and contrast,
anyone? I think that you would need to enforce intellectual property
law violations in the country where the violation happens (the
violator hasn't agreed to a "choice of governing law" clause).

> regards,
> Derick

- Michael
Received on Tue Dec 21 2004 - 19:24:51 GMT

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