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Re: SUN RPC code is DFSG-free

On Tue, Aug 26, 2003 at 09:36:13PM +0100, Andrew Suffield wrote:
> On Tue, Aug 26, 2003 at 07:10:46PM +1000, Anthony Towns wrote:
> > On Mon, Aug 25, 2003 at 11:51:49AM +0100, Andrew Suffield wrote:
> > > On Mon, Aug 25, 2003 at 04:03:20PM +1000, Anthony Towns wrote:
> > > > Nor is "Not being able to change it to look exactly like `solitaire.exe'",
> > > > but you can't do that, either. And yet we can still distribute lots of
> > > > things that you can change to look exactly like `solitaire.exe' under
> > > > the terms of the GPL.
> > > This is essentially false, as Branden has already commented. (Unless
> > > you happen to live in one of those freaky countries where copyright
> > > behaves like patents, but I think we'll have to ignore them)
> > 
> > "You're wrong, and we'll ignore anywhere where you may be right."

> > Nice to see we're working towards consensus.

> You have founded your argument upon laws which are inimical to
> copyleft licenses, and which do not apply throughout the US or EU -
> and which we still haven't seen any concrete examples of.

> I can't rebut this any more than I can rebut an argument that says
> "But if local law prohibits commercial use of software, then
> non-commercial-use-only clauses do not add any extra restrictions and
> are therefore both DFSG-free and compatible with the GPL".

> > You're invited to demonstrate an instance of someone coming up with the
> > exact same expression of the exact same copyrightable idea being sued
> > for copyright infringement and winning on the grounds of independent
> > reinvention. For bonus points make it an instance where they had access
> > to the original work.

> I'll have to pass on this one, as I've never heard of anybody being
> sued for this at all, but I counter-invite you to come up with an
> example of anybody coming up with the same expression of the same
> copyrightable idea being sued for copyright infringement and
> *losing*. I don't think any case law exists (or ever will exist) on
> the subject, so we'll have to work with the statutes - which, at least
> in the US and EU, are fairly clear that independant innovation is a
> valid way to avoid copyright issues.

> Furthermore, I invite you to find a country where laws which support
> your position actually exist. Otherwise we'll have to dismiss your
> argument as handwaving.

More handwaving, for your entertainment:

The set of all possible relevant legal statuses of the Sun RPC code is
as follows:

  The Sun RPC code is not an independent, copyrightable work in its own
  right, or does not enjoy copyrighted status.,

  The Sun RPC code is an independent, copyrightable work in its own
  right, and enjoys a copyrighted status.

If the code does not contain sufficient original expression that it
would be copyrightable, then the Sun RPC license does not matter; no one
is bound by it, and it can simply be ignored.

If the code is copyrighted, then we must consider the case of someone
incorporating the Sun RPC code into a work and distributing it to a
second person, who subsequently refines this work to create yet another
work which happens to be identical to the original Sun RPC code.  In
such a case, there are two possible interpretations under copyright that
must be considered:

  Provably independent creation of a work identical to another,
  pre-existing work that enjoys copyright status is not an infringement
  of the first work's copyright.,

  Creation of an identical work, even if provably independent (no
  copying took place from the original work), still infringes the
  copyright of the earlier work.

In the first case, the original terms of the Sun RPC code no longer
matter.  So long as we have no intention of taking the original Sun RPC
code and distributing it independently (I imagine we don't have a copy
to do so with even if we wished), we can do anything we want to with the
code, because it has been successfully laundered by passing through
glibc as permitted by the original license.

In the second case, we would have to consider the language of the GPL,
which says:

  These requirements apply to the modified work as a whole.  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.  But when you
  distribute the same sections as part of a whole which is a work based
  on the Program, the distribution of the whole must be on the terms of
  this License, whose permissions for other licensees extend to the
  entire whole, and thus to each and every part regardless of who wrote 

  Thus, it is not the intent of this section to claim rights or contest
  your rights to work written entirely by you; rather, the intent is to
  exercise the right to control the distribution of derivative or
  collective works based on the Program.

Under a regime where independent creation of a given expression is a
copyright infringement, the only way the GPL can be internally
consistent is if it does *not* require authors to relinquish their right
to pursue infringements against the copyright of their original,
independent work; otherwise, the paragraphs cited above are meaningless,
and actually leave an author who chooses to distribute his code under
the GPL with no right at all (or no practical means of enforcement) to
control the creation of copies of the original work, only the right to
create new derivative works and license (or not license) them under
terms of his choice.  If the GPL really did require this, we would have
a problem, because the copyright holder of the Sun RPC code hasn't
granted us this permission.  However, I don't believe that this is the
intended meaning of the GPL; rather, I understand the paragraphs above
to have the plain meaning that the GPL does *not* contest the copyright
of the original code, and therefore code whose license bears a special
provision regarding its disposition when in isolation is GPL compatible.

As is often said, law is not like programming; I have no algorithm that
can tell me which of the above legal outcomes actually corresponds to
the state of law in any given jurisdiction.  I do have some ideas about
which I believe to be the real one, but it's quite likely that we will
*never* know which of the above holds true, due to the lack of interest
in a live test.  However, unless you're arguing that independent
creation of an identical work does infringe the copyright of the
pre-existing work, and that it is the intent of the GPL to divest the
copyright holder of any ability to pursue copyright infringements, each
of the above outcomes are congruent in this respect: the license on the
Sun RPC code, as put forth by Brian T. Sniffen in
<87zni1r2ii.fsf@woodcarver.mitre.org>, is GPL compatible.

Steve Langasek
postmodern programmer

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