[jahewson]

There are some very dubious claims in their DMCA takedown notice:

> The work, Inspeqtor which is hosted at GitHub, is far from a “clean-room” implementation. This is basically a rewrite of Monit in Go, even using the same configuration language that is used in Monit, verbatim.

There is no concept of "clean room" in copyright law, the only issue is whether or not substantial copying has occurred. While it may be easier for the author to avoid accidental copying if he has never looked at the Monit source code, having seen it, being inspired by its design, or deliberately building a compatible system do not constitute copying. The notion that it must be copying simply because it uses the same configuration language is without merit, due to the fact that the configuration language itself is not a creative work and is not eligible for copyright protection, in the same way that an API or a programming language is not eligible for such protection: it is a medium for expression, not an expression in itself - otherwise all programs written in a given programming language would be a derivative work!

I suspect that it is this misunderstanding that has led the authors of Monit to file this DMCA takedown, and that they have acted in good faith, but with an insufficient understanding of the limits of what copyright protects.

> a. [private] himself admits that Inspeqtor is "heavily influenced“ by Monit

Being heavily influenced is not the same as copying. OpenOffice Writer is heavily influenced by Microsoft Word, and can even open the same file format, but it does not copy any of Microsoft's source code.

> b. This tweet by [private] demonstrate intent. "OSS nerds: redesign and build monit in Go. Sell it commercially. Make $$$$. I will be your first customer.”

The quote was "redesign and build Monit in Go" which does not show intent to engage in substantial copying of Monit's source code. If anything, it suggests an intent to write a new, redesigned system with its own source code but compatibility with monit.

Without looking at the source code, it's hard to say more, if the author simply ported the source code of Monit to Go then it would certainly be a derived work, but the DMCA claim doesn't mention any such copying. It's important to remember that compatibility is not copying and that only the source code to a computer program is covered by copyright - its architecture, design, and even APIs (see Oracle vs Google) are not protected by copyright, because otherwise the copyright claim would effectively behave like a patent, preventing anybody else from creating something conceptually similar.

[stonemetal]

There is no concept of "clean room" in copyright law

Sure there is. "Clean room" just means you have good legal evidence that you created an original work not a derivative one. It is a bit like having an alibi during a murder trial. There is no law that says you must have an alibi to not be convicted of murder, just like there is no law requiring clean room to dodge the copyright bullet, but having one is strong evidence that you are not guilty.

even APIs (see Oracle vs Google) are not protected by copyright

You need to check the news more. The Federal Circuit Court ruled APIs are copyright able, and handed it back to the lower court to rule on fair use. https://www.eff.org/deeplinks/2014/05/dangerous-ruling-oracl...

[jahewson]

What I mean is that there is no written law containing the words "clean room", and no requirement that an author has not seen similar works. While "clean room" might be a good defence, there aren't automatically grounds for making an infringement claim just because somebody hasn't followed such a hyper-cautious practice.

Oracle vs Google is complex and I reluctantly chose to gloss over the details. The case still has some appeals to go yet, posssiby to the supreme court. While the difference between APIs being copyrightable vs fair use is important, the practical impact should be negligible: if an API as large as the JDK can be copied without permission, then any API can.

[belorn]

Alas, there is also no concept of substantial copying in copyright law (for derivative work). The language used in Berne convention is "a work based upon one or more preexisting works".

Derivative work is not a factual statement of a work, but a narrative statement in how it came to be. It helps to look at other arts (film, books, music) in order to examine the legal theory as it is used.

Lets take a manga comic written in Japanese language, using Japanese culture in order to express a story. That is then rewritten into a movie script for an American audience, using language and culture that is familiar with that market. The two works might in the end share nothing substantial in common, but the narrative defines the movie as a derivative of the written manga.

For books, fan fiction is simply defined as derivative works. The word itself defines a narrative that do not include copying but a process which bases one work on an other.

For music, style from a couple of notes has been know as enough for derivative work to trigger. If a song provide an association of someone else song, the narrative has an implied infringement on the original work. Copying as an act is more or less completely absent from those cases.

So for all the different copyrightable arts, software seems to have the most narrow interpretation of derivative work. Look and feel was dismissed in a US court a while back, and API was thankfully also dismissed. My guess is that the beneficial effect a weaker copyright has on the software market is favored by the courts compared to the arts of films, books and music. That said, only looking at copying as the defining factor is unlikely to yield the correct conclusion. I do think inspeqtor has a decent defense. Since look and feel is not enough for software, Monit will have a uphill battle to claim a narrative that defines inspeqtor as based on Monit. The twitter statement seems to hint towards it, but a court might very likely want more to find inspeqtor guilty.

[1ris]

>There is no concept of "clean room" in copyright law, the only issue is whether or not substantial copying has occurred. While it may be easier for the author to avoid accidental copying if he has never looked at the Monit source code, having seen it, being inspired by its design, or deliberately building a compatible system do not constitute copying.

I'm far from a copyright expert, but I think there is. The equivalent of a clean room implementation would be "I read your cover text, and then wrote my own book". What Monit claims what happend would be the equivalent "I read your book in language $x, I translated it to language $y and change a few details to better target audience $z". (What Disney did, but with public domain works). That latter is relevant for copyright.

[mentat]

A public documented configuration language is a far cry from the source code for the implementation.