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Re: GPL and linking (was: Urgently need GPL compatible libsnmp5-dev replacement :-()

On 5/8/05, Raul Miller <moth.debian@gmail.com> wrote:
> The only time a collective work is not a derivative work is when the
> the collective work lacks sufficient originality under copyright law
> to be granted separate copyright protection.

This is not true under the Berne Convention or under 17 USC as I read
them; indeed, the term "collective works" and its superset
"compilations" appear to be explicitly reserved in 17 USC 101 (1976
and later) for classes of "original works of authorship".  As I
discuss below, there are considerable grounds for believing that the
category "derivative works" is completely disjoint from "collective
works".  Is there a lawyer in the house?

[stuff I wrote about Quagga -> net-snmp -> libssl]
> This doesn't seem to be put together logically.  Appearing in VM
> seems to me to fall under mere aggregation unless there's also
> some specific use of non-exported functionality.

Evidently you missed or have forgotten the origin of this thread,
which still retains "Urgently need GPL compatible libsnmp5-dev
replacement" in its title.  Quagga is not a virtual machine, it is a
routing daemon.  (I can understand your being misled by my poor usage
of "running inside".)  It can be linked against the net-snmp library
in order to publish routing tables to snmpd; in the Debian build, that
pulls in libssl (against which net-snmp is linked to provide SNMP v3
functionality), which (in the FSF's reading, not mine) triggers a GPL
violation.  Automatically terminating the GPL with respect to Quagga,
etc., etc.

> This seems to be based on a concept of "derivative works" which
> is at odds with that held by the U.S. Copyright office.
> I highly recommend you read circular 14, and pay particular
> attention to the examples which use the phrase "based on".

Let me get this straight.  You are offering me, as sufficient legal
precedent to outweigh the text of the Berne Convention and of 17 USC
(in which "compilations" and "derivative works" are always both stated
when both are meant), ... an instruction sheet for filling out a
copyright registration form?  Even if you interpret that document
correctly to say that "collective works" \subset "derivative works"
(which I do not immediately see grounds to read into it), what status
as a legal precedent to you expect it to have?

Hmm, ten minutes with FindLaw.  First hit on "collective work" for the
Ninth Circuit:  Columbia Pictures v. Krypton (
http://caselaw.lp.findlaw.com/data2/circs/9th/9455816.html ), from
which I offer you section VII.B.  It cites several authorities to
demonstrate that television episodes offered individually for
broadcast or rental remained separate works for the purpose of damage
calculations even if the copyright holder offers them only as a
complete set -- notwithstanding language in 17 USC 504(c)1 saying that
"all the parts of a compilation or derivative work constitute one
work".  Darn, the key citation Robert Stigwood Group Ltd. v. O'Reilly
(2nd circ, cert. denied 1976, meaning that the Supremes looked at it
and let it stand) is too old for FindLaw.  Oh, that reminds me; you
are paying attention to the 1976 boundary, right?

For a US Supreme Court case discussing the legislative history of the
1909 and 1976 Copyright Acts, see
http://laws.findlaw.com/us/495/207.html .  Be careful with this one;
even though Stewart v. Abend was a 1990 case, the governing law with
respect to the facts was the 1909 Copyright Act, in which the term
"derivative work" does not appear.  The opinion uses the shorthand
"derivative work" for a laundry list of classes of work that appears
in Section 7 of that Act, including the word "compilations"; but other
provisions of that Act (notably Sections 3 and 24) refer to "composite
works or periodicals", and interpretation of the copyright status of a
work that falls into both categories would probably be as contentious
as Stewart v. Abend seems to have been.

The 1976 Act has a much more modern definition-based structure, and is
rather easier to interpret.  And indeed, the Ninth Circuit has (in
Ets-Hokin v. Skyy Spirits 2000,
http://caselaw.lp.findlaw.com/data2/circs/9th/9817072.html ) analyzed
a case involving copyright on a photograph "through the lens of
derivative copyright" (gotta love that Ninth Circuit!), discussing in
great detail the criteria for a "derivative work".  Both
"compilations" and "collective works" come up along the way; note that
the term "compilations" is explicitly defined in the 1976 Copyright
Act to include "collective works", with the distinction being that
only those in which the compiled materials are "separate and
independent works in themselves" qualify as "collective works".

While the Ets-Hokin court did not rule on the question of whether a
disputed work was derivative or collective or both -- a question not
at hand in that case -- its citations from both statute and
legislative history appear to treat the two categories as disjoint, or
at most perhaps capable of overlap but far from concentric.  The only
comfort I can offer the collective-works-are-derivative-works camp is
the use of the phrase "one or more preexisting works" in defining what
a derivative work must be "based upon".  Make of that what you can;
personally, I think it covers the case where a later work inextricably
intertwines elements from several source works and thus requires
license to create a derivative work from the copyright holder on each.

Observe also that the 1988 Berne Convention Implementation Act (
http://www.cni.org/docs/infopols/US.Berne.Convention.html ) had no
need to alter provisions regarding derivative works and collective
works ("collections", in the Berne Convention, Section 2.5) to
reconcile them with the treaty.  And the Berne Convention provision
regarding "derivative works" (Section 2.3 per the article heading,
which is the only place where the term appears) is, in its entirety:

<citation article="2" section="3" title="Derivative works">
Translations, adaptations, arrangements of music and other alterations
of a literary or artistic work shall be protected as original works
without prejudice to the copyright in the original work.

Note "a literary or artistic work", "the original work".  In the
English language this is called the "singular".  So the Berne
Convention absolutely does not contemplate "derivative works" based on
multiple original works.  While that is (in my view) a defect in
imagination not present in the 17 USC 101 implementation's "one or
more preexisting works" (ever seen "Bambi Meets Godzilla"?), I think
it makes it absolutely clear that the Berne Convention treats
"derivative works" and "collections" as disjoint sets.  So, in the
absence of something a little stronger than Circular 14 to use as a
counter-argument, you are kinda blowin' upwind here.

- Michael

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