Re: Copyright lawyers analysis of Andreas Pour's Interpretation
Raul Miller wrote:
[ ... ]
It appears that you have raised a (somewhat) new issue, so I will address that one.
Your claim appears to be that, when combining X with Gimp, the Gimp is under the GPL, X
is under XFree, and the "combined whole" is under the GPL. You do this by reference to
"collective works".
The problem with this analysis was already addressed by me in
http://www.debian.org/Lists-Archives/debian-legal-0001/msg00150.html. I will summarize
again here.
Section 201(c) of the Copyright Act establishes that there can be a separate copyright in
a collective work:
(c) Contributions to Collective Works. - Copyright in each separate
contribution to a collective work is distinct from copyright in the collective
work as a whole, and vests initially in the author of the contribution. In the
absence of an express transfer of the copyright or of any rights under it,
the owner of copyright in the collective work is presumed to have acquired
only the privilege of reproducing and distributing the contribution as
part of that particular collective work, any revision of that collective work,
and any later collective work in the same series.
So this says that if you combine a number of works, the copyright in them remains in the
original work; however, you are entitled to a copyright in the combination. Note that
this copyright does not extend to the works that you incorporate.
To understand this better, you need to read the definitions of "collective works" and
"compilations" in Section 101 (http://www4.law.cornell.edu/uscode/17/101.html)
A ''collective work'' is a work, such as a periodical issue,
anthology, or encyclopedia, in which a number of contributions,
constituting separate and independent works in themselves, are
assembled into a collective whole.
A ''compilation'' is a work formed by the collection and
assembling of preexisting materials or of data that are selected,
coordinated, or arranged in such a way that the resulting work as
a whole constitutes an original work of authorship. The term
''compilation'' includes collective works.
Thus, a "collective work" is a subset of "compilations" (except in compilations the
components do not have a separate copyright in them -- an example would be Yellow Pages,
where each listing does not have an associated copyright). I dealt with compilations in
the above-referenced message.
A good example of a compilation are Yellow Pages. For a long time there was debate about
whether Yellow Pages were copyrightable at all, since they merely listed information, and
hence lacked the "originality" required for a copyright. However, in several cases the
courts decided that you could have a copyright in directory listings if you exercised
judgment/originality in selecting what to include in the directory. Thus, an exhaustive
directory is far less likely to obtain copyright protection than a selective one. But
the key is that the copyright exists in the *selection* of works/information to include,
not in the works or information itself.
Now, in the Gimp/X example, let's consider what the "collective works" copyright resides
in. What have you done? You have added X to Gimp, changing neither. Thus, your
"collective works" copyright would reside in the X/Gimp combination -- in the selection
of using X and Gimp together. I doubt very much you would be entitled to a copyright in
that. There is no originality in doing this. If there is no copyright, there is no
"work", and hence, under Section 0 of the GPL, no "Program" (in fact it does not make
sense to license something that is in the public domain).
Moreover, even if you could get a copyright in that combination, there is no problem with
releaseing the kghostview/Qt combination under the GPL. Note that the collective work
copyright does *not* reside in kghostview or in Qt; only in the combination (basically in
the selection of which works to combine). I have no problem releasing my selection of
combining kghostview and Qt under the GPL -- people are free to copy and change that
selection however they please. What restrictions of the GPL would be violated? (I note
in this regard that the way the GPL is written it makes virtually no sense to apply it to
a copyright in collective works).
Do not fall into the trap of thinking that the components of the collective work itself
must be licensed the same way the collective work is. Read Section 201(c) closely -- it
clearly distinguishes between the two. The point of 201(c) is to state that if you get
the right to distribute something as part of a compilation, you don't have the right to
distribute the work separately. Thus, for example, if I get the rights to 20 songs to
distribute on a compilation CD, I do not have the right to distribute any of those songs
apart from that compilation CD (or revisions to it).
So, really, Section 201 has nothing to do with what you are implying.
>
> > > In this case the Gimp is an example of a "Program" which is a GPL licensed
> > > collective work containing GPLed material and X licensed material.
> >
> > So now you admit that the X code remains under the XFree license? Well, until the
> > next e-mail, I guess.
>
> Both licenses apply. The XFree license only applies to the XFree portion
> of the code. The GPL applies to the work as a collective whole, and
> the GPL applies to those portions which are solely licensed under the GPL.
But you cannot have a copyright in the "collective whole", since there is nothing
copyrightable there. Trying to copyright the combination of Gimp and X is like trying to
copyright a short phrase -- a combination of two words. There is just not enough
originality for copyright there.
And even if you could copyright it, Section 201 places limits on the exercise of
collective works rights. Section 201 is entitled "Ownership of Copyrights" and just
makes clear that by obtaining the rights to distribute a component work as part of a
collective work, you do not obtain copyright ownership of the component work.
[ ... ]
> > If Qt is a "Program", then so would be X. You will note from Section
> > 0 that accordingly X would have to be licensed under the GPL; if not,
> > it's not a Program. But you just (apparently) agreed above that X is
> > not licensed under the GPL.
>
> It is statements like this which make me believe that you do not
> understand collective copyrights.
>
> I did not agree that X is not licensed under the GPL. I did agree that
> X is licensed under XFree. I don't know why you have a problem with this.
For the reasons I stated in
http://www.debian.org/Lists-Archives/debian-legal-0001/msg00151.html and
http://www.debian.org/Lists-Archives/debian-legal-0001/msg00160.html.
Ciao,
Andreas
Reply to: