Re: Plugins, libraries, licenses and Debian

[Anthony DeRobertis <asd@suespammers.org>]

On Dec 16, 2003, at 11:28, Jeremy Hankins wrote:
> You may well be right, I can't really claim to know.  But you don't  
> seem
> to be answering Brian's point.

I'm probably not :-( I've been quite short on time for the last few  
days, so reading -legal has been put on the back-burner. I've managed  
to give quick replies to the messages Brian cc'd to me.

Now that I've managed to catch up on this thread, I'm going to try and  
do a better job.

> If I understand him, he's saying that the author of the plugin is doing
> the work of pairing his code with the host (even if, in fact, it will  
> be
> paired many times and by many people) and that that's where copyright
> subsists, and where a derivative work is created.  Arguably, the plugin
> itself (sans host) is a derivative of the plugin+host which the author
> created first.

Keeping in mind the original situation, host = X11 license, plugin A =  
GPL, plugin B = OpenSSL, we were wondering "can Debian ship host + A +  
B?" I think we agreed that if they were in separate packages, the  
answer would be 'yes'. See my position summary from December 9th, and  
the responses to it, here:
<http://lists.debian.org/debian-legal/2003/debian-legal-200312/ 
msg00121.html>

According to the list archives, Brian T. Sniffen had one response about  
what license people would receive the host under. Also he had one about  
the hypothetical script.

The point I am trying to make here is that Debian is fine if we happen  
to put all the plugins in the same package, along with the host. I base  
this on the GPL allowing 'mere aggregations'.

From the definitions in US law, it's fairly clear, I think, that the  
package, if it is a copyrightable work at all, would be a compilation,  
not a derivative work. It was then argued that it can't be a  
compilation, because when the Debian maintainer put host + A together,  
there was no original work of authorship.

Now, what I'm trying to say is that, yes, a significant amount of  
creativity (the standard for copyright in the US) went into A to make  
it work with host. A's author may of even created the work A+host,  
though I doubt it was ever subject to copyright (probably only existed  
in RAM). However, even if he did, it doesn't matter to Debian: We  
received, alone, the work A, not A+host. And if we happen to recreate  
the work A+host, that's fine; independent recreation is a full defense  
against copyright.

Basically, "tar cjf a+host.tbz plugin-a/ host/" does not create a  
compilation or a derivative work. It creates what is, in the GPL's  
words, a "mere aggregation." IOW, it's perfectly legal.

> But even if the courts don't take such a literalist view, I have  
> trouble
> accepting your claim that since the creative work and the pairing that
> results from it are separated in space & time that there's no  
> derivative
> work.

The important part is that since _I_ did the pairing, I'm the only one  
who could have the copyright over the pairing itself. (A's author  
naturally retains his copyright over A, which may be a derivative work  
of host; and host's author retains his copyright over host)

>   Clearly the pairing was the purpose of the authors creative work
> -- to argue about whether or not he actually paired it is to devolve
> into philosophical hair splitting.

No it's not. If you don't actually create --- and fix --- a work, you  
can't have a copyright on it.

And even if you do, if someone else does it as well, they have a  
copyright on it. Or, quite likely, neither of you do, because it wasn't  
deserving of copyright in the first place.

> If I'm a radical artist and fire a cannon from miles away to land on a
> sculpture, is the resulting "art" not a derivative of the original
> sculpture because I wasn't there when it hit?

No, because you can mutilate your copy of a work, and that's mostly  
outside the scope of copyright law. Though, before you fire, you may  
want to check in to the sculptor's moral rights to prevent damage to  
his work....

>  How about if it's a copy
> rather than the original?

Much more likely, but I'd question whether shooting a cannon at  
something meets the standard of an original work of authorship ;-)