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Re: Illustrating JVM bindings

On Thu, Jan 20, 2005 at 08:51:46PM -0800, Michael K. Edwards wrote:
> We seem to be talking past one another.  Maybe it's just that I'm
> implicitly assuming a separation between "library source code" and
> "program source code", and saying that the latter is only a derivative
> work of the former if it contains copyrightable material, which API
> calls are not.  I don't think either of us means to get into a
> semantic debate about whether the phrase "program source code" ought
> to refer to the whole ball of wax.  So I'll use "program exclusive of
> the library", or PEOTL, instead.

Except I'm holding that this kind of distinction is meaningless in the
general case.  To meaningfully dicuss this kind of things, you'll have
to nail down other details.  Intent matters, other activities matter, etc.

For example, consider a case where I hire person A to write a propietary
compiler.  I run low on funds, so I hire person B to make a "gcc library",
then person C to upgrade that library to include some API features I want,
then person D to merge the work of person A and person C.  I then hire
person E to publish the result.

Just for fun, let's say that all this hiring happens in some random
countries which haven't signed any of the copyright treaties.  Also note
that I've not bothered to specify who holds the copyrights on the works
I contracted for -- all that matters is that these people don't hold
copyright on the original gcc.

> Am I correct in reading this as agreement that the PEOTL is not a
> derivative work of the library?

In the general case, no, I'm not agreeing.  However, I do recognize
that there can be specific cases where your generalization holds.

> > And, the same thing goes for the code which uses the library -- if you
> > need to distribute it, or modified forms of it, you still need to comply
> > with the terms of its license.
> Let's assume that I wrote the PEOTL and intend to distribute it under
> the following license:  "You have the copyright holder's permission to
> use, copy, modify, and distributed modified copies of this code, in
> source code or binary form, and to relicense the result to others
> under terms of your choice, as long as everyone pets a cat."  This is
> GPL-incompatible in the sense that a derivative work of both GPL and
> "pet-a-cat" code is undistributable.

I think a court would treat this as frivolous.

> > For example, if the precedent of lotus v. bourland were relevant in a
> > context where you were distributing the library as a whole, that would
> > be tantamount to saying that the library as a whole was not copyrightable
> > because it was purely functional in nature.  While that would be a rather
> > interesting and perhaps exciting development for computer software
> > professionals, I don't believe that's a likely ruling in a copyright
> > infringement case.
> That's actually very nearly the substance of the Lexmark ruling, given
> the additional fact that an SHA-1 checksum of the program in the
> printer cartridge was used by the printer as a "lock-out code" to
> reject non-Lexmark cartridges.  Lexmark was trying to use the
> copyright monopoly to criminalize the creation of interoperable
> cartridges; instead, the appeals court ruled that they gave their
> entire program a functional aspect and rendered it uncopyrightable.

I think this falls under fair use.  The program in the printer cartridge
was tiny, and if Lexmark really wanted copyright protection on that
program, they shot themselves in the foot by making its checksum a
functional issue.

But this doesn't generalize to all libraries in all circumstances.
It doesn't even generalize to all firmware (though I do see it as
weakening software protection on firmware).

> That's not where I was going, though; I was saying that the PEOTL
> doesn't infringe the library's copyright.  But the PEOTL+library
> combination, like any collection of things containing the library,
> does constitute "copying" in the legal sense.  If I don't have a
> license to copy the library, or if I had one and it was rescinded,
> then I'm infringing its copyright.  So far so good?

No, not in the general case.

> > > > Since the GPL restricts distribution of itself at violation time, this
> > > > idea of "function isn't copyrightable" isn't going to solve all the
> > > > problems faced by someone violating the GPL.
> > >
> > > I don't understand this sentence.  Perhaps you are trying to say that
> > > for A to study a GPL library to understand how it works, and then
> > > write non-plagiarized, non-GPL code that uses it correctly, causes A's
> > > GPL rights to self-destruct, even if it is not true that under
> > > copyright law the non-GPL code is a derivative work.  That's not in
> > > the GPL that I've read, and if it were -- this is freedom?
> > 
> > That's hypothetical situation is rather narrowly focussed away from
> > the typical cases I was trying to address.  You don't seem to be asking
> > me about what I meant to say -- instead you seem to be asking me about
> > philosophy or something.  If you have a question about what I meant to
> > say, could you try again?
> OK.  I still don't understand the sentence:  "Since the GPL restricts
> distribution of itself at violation time, this idea of 'function isn't
> copyrightable' isn't going to solve all the problems faced by someone
> violating the GPL."  Specifically, I don't understand "the GPL
> restricts distribution of itself at violation time".  Could you please
> rephrase it?

That was intended to be a paraphrase of sections 4 and 5 of the GPL,
specifically focussing on what happens when someone chooses to make or
distribute copies in some fashion where permission explicitly hasn't
been granted.

I did not mean to imply that there would always be a specific time of
the day, or something.

Does that make sense, or do I need to explain something more?

> > [2] How can A rely on the GPLed content being there for this program?
> A is distributing the library as well, on the same CD.

[2a]  Did A modify the library?

[2b] Did A cause the modified library to incorporate part of the

[2c] Did A cause the program to in any way be specific to this

> > [5] Why is A not releasing this new code under GPL compatible terms?
> Any legitimate purpose for which A didn't think the GPL was the best
> choice.  To make a buck.  To encourage people to pet cats.

Frivolous.  A would probably not be able to enforce that requirement
in court.

> Let's take, for a moment, a myopic view of the stipulated facts.  

Probably a bad idea.  Anyways, I think your hypothetical case is
GPL compatible because I think your non-GPL restriction would be
tossed out of court.

> Faced with a license that loudly claims it is founded in copyright
> law, which the developer can only be held to have violated if the
> court interprets "mere aggregation" in a way that has nothing to do
> with copyright law, what do you think that court will do?  Where do
> you really think the balance of harms lies?

I think that the court will be looking at who is being harmed, as well as
how and why.  They will attempt to distinguish between "working around the
license" and "working within the license" based on questions of intent,
and consequences.

In other words, in each area of conflict, the court will be looking at
questions like "what would likely happen if this were different"?  And,
in doing so, will try to find a way of looking at the conflict which
minimizes confusion and in some way maximizes each party's control over
their own domain.

In other words, the process has more in common with "solving a mystery"
than it does with "solving an equation".

> > The GPL intentionally removes the freedom to collaborators freedoms on
> > collaborative works.  So, yes -- to answer your philosophical question --
> > there is an observable loss of freedom there, if you specifically look
> > for it.  This sort of boundary issue is a common problem when talking
> > about ethics, rights, and similar concepts.
> I can't quite parse this, but I shall assume you are saying, "The GPL
> intentionally removes the freedom to take a derivative work
> proprietary, in the interest of strengthening collaborators' freedoms
> to create collaborative works in an environment of trust."  I agree,
> and I think it's well written for the purpose (although I have some
> quibbles).  But an interpretation of the GPL in which one's mind is
> tainted by reading and learning from GPL material is not good for
> anyone's freedom.

I read your last sentence there as saying, among other things:  If someone
holds an opinion of the GPL that they dislike, that's not good for anyone.

Personally, I don't think that opinions are that big of a deal.  If
those opinions are opinions which make sense to me about something
I think matters, that's a different story.  But in the general case
opinions aren't the issue.


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