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Re: SUN RPC code is DFSG-free

Steve Langasek <vorlon@netexpress.net> writes:

> 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.
> }

The problem here is the "provably independent" -- by hypothesis the
work is based in part on the original Sun RPC code.  So Sun's terms,
along with those of the GPL, still apply.  So the first option is
clearly irrelevant.

> 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.

I'm having a lot of trouble parsing this (single!) sentence.  On the
face of it you seem to be saying that someone who licenses something
under the GPL ought to be able to come along later and add extra
restrictions to the license, and that RMS could not possibly have
intended otherwise when the GPL was written.

> 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.

It's a good thing the GPL doesn't contest the copyright of the
original code, because it would lose.  Instead, if there is a
conflict, no distribution is possible.  I completely fail to see how
the section of the GPL you quoted is relevant.

The Sun RPC code is *still* licensed under Sun's terms when it is
distributed as part of a GPL work.  But the GPL says to the
distributor (in essence): "License all portions of the work to
distributees under the terms of the GPL, with no extra restrictions.
If you cannot, don't distribute."  Clearly, "don't distributed X block
of code by itself" is a restriction not found in the GPL, therefore
it's not GPL compatible.

Of course, there may or may not have been a clarification, I don't
know.  Though I certainly distrust getting it third (or more) hand.
On the other hand, it's hard to imagine that Sun has a problem with
the code being distributed as part of a GPL work.

> 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.

True.  But my understanding is that traditionally d-l has erred on the
side of caution.  That would suggest that if there is doubt we should
seek to clarify that doubt before assuming that there's no problem.

Jeremy Hankins <nowan@nowan.org>
PGP fingerprint: 748F 4D16 538E 75D6 8333  9E10 D212 B5ED 37D0 0A03

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