Re: GPL and linking (was: Urgently need GPL compatible libsnmp5-dev replacement :-()
On 5/9/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> 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?
17 USC 101: "A "derivative work" is a work based upon one or more
preexisting works"
how much plainer do you need this t
I'm asserting that copyrightable collective works are derivatives
of the contained works. Can you show me some legal basis
to believe otherwise?
> [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.
I haven't studied that issue, and so don't have much of an opinion
about it. However, it certainly sounds like libssl could be a part of
Quagga.
To be a part of Quagga (instead of mere aggregation), I'd expect more
libssl to mean more than "it just sits there'. Can you show that
creative elements of libssl are a part of Quagga? Does libssl
do anything significant here?
If your concern is only a reference by name, and sitting there in
memory, you have the same issues with emacs when it's
editting a non-free document.
> > 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?
What text, specifically, are you referring to? I've read the Berne
Convention and 17 USC 101, and I don't see any statement there
that these are disjoint concepts. They are different concepts, but
that's not the same thing as disjoint. I can see that you've stated
that these two concepts are disjoint, but I don't see any legal
reasons for believing that that is the case.
> 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?
As near as I can tell, Feltner was arguing that even though Columbia
had a contract entitlnig it to the individual works that the series as
a whole had sufficient new creative content to be a copyrightable
work in and of itself, and that Columbia did not have a contract
that granted it a right to this unique and copyrightable work.
As near as I can tell, the Court held that that was not the case.
Anyways, if my argument were that there were no difference between
"collective" and "derivative" works, then those would be proof that
I was wrong. But that's not my argument. I recognize that they
are different.
I'm arguing that these concepts are not disjoint.
Not all collective works have sufficient creative content to be copyrightable
in their own right. That means that not all collective works qualify as
derivative works. But since the original works still have copyright
protection, it's useful to have a word to discuss this issue.
Not all derivative works are based on more than one distinct original
work, so not all derivative works are collective works.
But there are examples of derivative works which are collective
works ("Best * of <year>" collections are a fairly classic example). If
you have some legal basis for thinking this is not the case, I'd be
interested in hearing about it.
Anyways, I'll grant you, the words are different, and you can easily find
examples of works which are one but not the other. But "different" and
"disjoint" are different concepts.
> <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.
> </citation>
When I look at the text of this treaty:
http://www.cerebalaw.com/berne.htm
I don't see the word "Derivative works" anywhere in that section.
Is that the best you can do?
--
Raul
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