On Sun, Oct 31, 1999 at 10:04:47AM -0500, Raul Miller wrote:
> > So it'd be perfectly okay for Corel to do something like setup their own
> > ftp site, that doesn't contain dpkg, but does contain their frontend,
> > and tell people to include both the Corel and Debian sites in their
> > apt sources.conf. We'll blithely assume they can get to the point where
> > Apt's functional without infringing, although I'm not sure how they'd
> > manage this.
> >
> > In this case, since they're never distributing dpkg, or any part of
> > it, they don't possibly infringe. In spite of the system() call in the
> > frontend. Agreed?
> That's almost exactly what I'm saying. I say "almost exactly" because
> of the relatively new concept of contributory infringement.
>
> Rather than spend a lot of time defining this concept, I'll just
> refer you to http://www.dcl.edu/lawrev/97-4/muroff.htm#24
Is this the URL you meant? There's only really a passing reference to
contributory infringement in it. :-/
There's a definition in:
http://www.wvjolt.wvu.edu/wvjolt/current/issue1/articles/salang/salango.htm
which'll do:
Contributory infringement is a theory whereby a third-party may be
liable for contributing to another's infringing activities. To be
liable for contributory infringement, the defendant must know of the
activity constituting the infringement and induce, cause or materially
contribute to it.
> If it weren't for this, then yes: I would agree.
This only applies if there is, in fact, an infringement. I don't see where
it'd be in this case, though. The user is certainly allowed to download
dpkg, and is allowed to download get_it separately since at the very least
it's exempted from the GPL's requirements by the clause:
] If identifiable sections of that work are not derived from the Program,
] and can be reasonably considered independent and separate works in
] themselves, then this License, and its terms, do not apply to those
] sections when you distribute them as separate works.
And in any event, this would be a direct infringement on Corel's part, not
a contributory one.
And once the user has a copy of both dpkg and get_it, she can do whatever
she likes with it, either because copyright doesn't come into play at
all, because the only thing she does is `run the program', which is
exempted in section 0 of the GPL, or because the `modified program'
(the combination of dpkg and get_it created at runtime) isn't actually
distributed, so most of the clauses in section 2 are irrelevant, and
the remainder can be easily adhered to.
So I don't see what the infringement is here.
(For that matter, I'd apply the same argument to say that dynamic linking
in and of itself isn't infringing, although #include-ing header files
still is. Distributing the GPLed library and the non-GPLed binary together
though, could still be an infringement, regardless of whether header
files were #include-ed, though, under the same thesis that distributing
both dpkg and get_it would be)
> > But let's work with a single CD that contains both get_it and dpkg.
> >
> > From the appropriate section of the GPL:
> >
> > ] These requirements apply to the modified work as a whole. If
> > Hmmm. Note, `modified work'. First thought, is that this may not even
> > apply at all. Under section (1) they can simply copy dpkg verbatim as
> > they receive it (from the Debian mirror network), and ignore section
> > (2) entirely.
> > [...]
> > OTOH, you could claim that making a CD is actually getting dpkg, and
> > making some modifications (namely, adding a whole bunch of other
> > stuff). This seems more like a legal technicality than anything I'd
> > really want to be a part of, though.
> Well, for example, editorial notes are considered modification, for the
> purposes of copyright -- even though anyone who edits material would
> consider the underlying document to be unmodified.
I'm not entirely clear on this. In particular, on whether the intention
is that:
1 The cat sat on the mat. [The cat refers mankind's feral
tendencies. That it sits on the mat
reflects a civilising influence]
2 It was a big cat. [A threat?]
is a derived work, or that:
1 The cat refers to mankind's feral tendencies. That it sits on the mat
reflects a civilising influence.
2 A threat?
is also a derived work. In particular,
Section 103 of the US act (which is where `editorial notes' comes from,
includes:
(b) The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in
the preexisting material.
which *seems* to imply that the latter case above wouldn't be affected by
`The cat sat on the mat. It was a big cat.' 's copyright.
> But the real kicker is contributory infringement. Because the
> front end is designed to incorporate dpkg, it doesn't really matter
> that Corel is allowed to distribute verbatim copies of dpkg -- using
> that permission to create massive quantities of installed systems
> which are running what is clearly a composite program is still an
> issue.
However, those systems don't infringe. It would be perfectly legitimate
for them to only distribute the source code, for example, and let everyone
compile it on their own to use get_it. I don't disagree that this would
be illegal in other situations where similar things happen, but the GPL
specifically gives you permission to do all of this, so there's just no
infringement to contribute to.
> What you're basically trying to show, I think, is that the Corel front
> end isn't a derivative work of dpkg.
>
> What I'm trying to show is that it is -- and I've offered two pieces of
> evidence that it is:
>
> (1) It won't behave according to the documentation if dpkg isn't present, and
(1) It's dependent on dpkg
I'll grant you that happily.
> (2) It's distributed with dpkg
I'll grant you that too.
You're also trying to show that `(3a) Since it's dependent upon dpkg,
it's `based on' dpkg for the purposes of clause 2 of the GPL', and/or
`(3b) since it's dependent on dpkg, distributing them together isn't
mere aggregation.'
I'm not convinced (3a) applies, since, from the GPL (sect 0):
] [...] a "work based on the Program" means either the Program or any
] derivative work under copyright law: that is to say, a work containing
] the Program or a portion of it, either verbatim or with modifications
] and/or translated into another language.
which isn't the case here, since get_it doesn't contain dpkg, nor
any portion of it. (Well, except its name, but that's been held
non-copyrightable elsewhere anyway).
Further, I'm not convinced (3b) applies, since both parts can quite
happily be distributed separately --- without any extra action needed on
the part of the user (such as compilation, or cat'ing; all you need to do
is run dpkg -i, which you had to do anyway) --- so they're separate enough
that combining them is simply putting two reasonably separate programs
together on a CD to make getting them easier for people, which seems to
be exactly what `mere aggregation' is meant to be about.
[...]
> That's a different copy of "based on". If I write a screen play and my
> stage directions for part II say "Wolfe's Colored Museum, first act",
> that would be more like the concept of "based on" we're talking about
> here.
I don't think this holds up, though, based on the above.
> It's important to note that computer programs aren't screenplays, but
> there is a performance aspect to them and the courts do consider this
> relevant. Here's what U.S. copyright law has to say about this issue
> of "what is a computer program?":
>
> A ''computer program'' is a set of statements or instructions to be
> used directly or indirectly in a computer in order to bring about
> a certain result.
>
> Based on this definition, it's fairly clear that Corel's front end is
> a program which incorporates dpkg. You don't get the documented result
> if it's run and dpkg is not included.
I don't see the relevance of this, really. Program is perfectly well
defined in the GPL: ``This License applies to any program or other
work which contains a notice placed by the copyright holder saying
it may be distributed under the terms of this General Public License.
The "Program", below, refers to any such program or work [...]''.
ie `Program' is anything that has `This is covered by the GPL' in it,
whether it's a series of instructions or not.
Cheers,
aj
--
Anthony Towns <aj@humbug.org.au> <http://azure.humbug.org.au/~aj/>
I don't speak for anyone save myself. PGP encrypted mail preferred.
``The thing is: trying to be too generic is EVIL. It's stupid, it
results in slower code, and it results in more bugs.''
-- Linus Torvalds
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