Re: RES: What makes software copyrightable anyway?
On 5/20/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> Stipulate, for the moment, that "either the Program or any derivative
> work under copyright law" (candidate E) and "a work containing the
> Program or a portion of it, either verbatim or with modifications
> and/or translated into another language" (candidate C) are not
> obviously equivalent.
Ok.
> Under contract law, it is necessary to construe a single definition
> for the clearly delimited phrase "work based on the Program" -- a
> phrase with no a priori legal meaning -- out of the text of section 0
> as written, along with any other evidence that may be demonstrated to
> reflect a binding intention on the licensee's part. This construction
> must, as a matter of (common law) principle, be done "against the
> offeror" -- i. e., by choosing, from among the plausible readings of
> the text, the one least favorable to the offeror's position in the
> case at hand.
Ok.
> Personally, I think that candidate C is so weakly attached
> grammatically as to be not plausible as a replacement for the
> definition given by candidate E. But suppose one were to call this a
> significant ambiguity in the text.
Ok.
> At this point, and only at this point, do we need to bring in the
> actual meaning of "derivative work under copyright law", as discussed
> elsewhere. As I read it, candidate E is still the correct
> construction. That's because it is less favorable to the offeror, as
> it draws narrower bounds on which "works based on the Program" have to
> be offered entirely on GPL terms. In this construction, the licensee
> does need to provide a theory under which the he is granted permission
> to create and distribute "collections" (with or without a selection
> criterion that raises them to the level of "collective works") that
> contain a "work based on the Program"; this is addressed below.
>
> Is that better?
Yes.
I think it's important to note that narrower bounds on the license are
not necessarily less favorable to the offeror. If you're willing to agree
with me on that point, I'm happy.
> > Presentation: Logically, you seem to have assumed that the clause
> > in question is erroneous, and you draw conclusions from this
> > assumption. In other words, but your conclusions seem to be
> > don't seem to add much to your initial assumption.
>
> I was attempting to use the phrase "erroneous paraphrase" just as a
> name for candidate C above. As stated more clearly above, the notion
> that it is erroneous doesn't enter into the logic until you try to
> resolve the ambiguity against the offeror.
And even there that "erroneous" character is contextual.
I could imagine (for example in a dual-license contract) that the licensee
might prefer the broader interpretation -- for that case, the narrower
interpretation would be "erroneous".
> > Issues: As near as I can tell, section 0 of the GPL establishes what
> > is being licensed by the GPL. To my knowledge, no works which are
> > not explicitly recognized in section 0 are being licensed. Section 0
> > also seems to establish the scope of the license -- which is something
> > you've expressed strong interest in. Other sections which grant
> > permissions explicitly do so "under the terms of this license" which
> > includes section 0, or under the terms of section 1 (which refers
> > to "the Program" of section 0), or of section 2 (which must be
> > under the terms of section 1).
>
> The question being asked in "scope of license" analysis is, what
> rights reserved to the copyright holder, as defined in 17 USC, are
> being made available for exercise by the licensee, whatever the return
> consideration may be? In the case of the GPL, the licensed rights
> include copying and distributing the Program itself; modifying,
> adapting, translating or otherwise creating a "work based on the
> Program", and copying and distributing the result; and aggregating a
> "work based on the Program" with other material and copying and
> distributing the result.
As near as I can tell, those rights are somewhat limited in the context
of modification.
You seem to be trying to imply that conditions are to be ignored when
construing the scope of the license. But I don't think that's legally
valid -- I've certainly not seen anything that would support that
implication. And, I've seen legal language (for example the concept
of "narrow scope") which implies the opposite.
> In another license, the scope might be as narrow as "translate
> alternate pages into French and German and publish the result on
> Post-It (TM) Notes"; but "as long as you pet a cat on alternate
> Tuesdays" isn't part of the scope of license even if it's the first
> clause in the agreement text. "As long as you [do anything]" is
> contract law stuff, even if [do anything] logically requires exercise
> of the rights under copyright that are being offered to you.
Except... I think you've left out a lot of the narrowness of the GPL.
> I think that there's really no question, no matter which path you take
> to construe "aggregation", that it includes both the creation and
> distribution of copyrightable collections (such as distro CDs) and
> uncopyrightable collections (such as Quagga+Net-SNMP+libssl).
There is some question about whether Quagga+Net SNMP+libssl
is uncopyrightable.
> If you read appellate cases like Sun v. Microsoft and SOS v. Payday,
> you will see that the focus of "scope of license" is on what 17 USC
> rights are on offer with regard to what works in what forms, not on
> what return obligations the licensee may have.
I think that's largely a reflection of the license in question.
> Even if you want to argue that an aggregation of sources is not the
> same form of work as an aggregation of binaries, there is no question
> that the GPL permits the latter under some circumstances of
> licensee conduct.
Sure.
I think there's no question that not all circumstances are equivalent.
> You might argue that it attempts to condition it on the former, but that
> kind of conditional relationship has no effect on the "scope of license"
> and is the domain of contract law, not copyright law. (IANAL, TINLA.)
If you're only allowed to release on post-it notes, wouldn't that condition
-- on post-it notes -- be a part of the scope of the license?
[Answer: yes, it would be unless there were some other applicable
license which bypassed that condition.]
> > More simply, "the Program" and a "work based on the Program"
> > are the things that are being licensed. Construing them narrowly
> > does not seem to be an argument in favor of the licensee except
> > for the case where the thing being considered does not need to
> > be licensed under the GPL.
> >
> > If the only cases you're talking about is a case where the GPL
> > doesn't eed to license the work in question, I have no dispute
> > with you on this issue.
>
> You don't license things, you license rights with respect to a work on
> which you hold copyright.
Right. Sorry, I meant "grant license on the work in question"
where I wrote "license the work in question". I apologize for
the ambiguity.
> And the GPL certainly licenses the right to aggregate a "work
> based on the Program" with other stuff, which amounts to the
> 17 USC definition of "collective works" plus other, uncopyrightable,
> collections.
That only applies when the work is not based on the Program.
It seems to me that "based on" is a reference to a concept
from copyright law.
Paraphrased, the "mere aggregation" clause is saying that
proximity, by itself, isn't enough of an issue to matter.
> > > is in dispute. Let's go with, "whatever the cause of action under
> > > discussion, a claim of (non-exclusive) license to a copyright is
> > > always viewed through the lens of contract law, and construed
> > > accordingly." OK?
> >
> > I think you're still overstating that. For example, consider
> > statutory license, such as that granted by 17 USC 117.
>
> That's not a "copyright license", any more than "fair use" is. It's a
> statement that certain kinds of "copying and adaptation" incidental to
> the use of computer programs are not rights reserved to the copyright
> holder and cannot be used to prove infringement under 17 USC 106.
> "Copyright license" applies only to those rights that it is within the
> copyright holder's power to grant or withhold.
http://www.answers.com/license
1. a. Official or legal permission to do or own a specified thing.
I think it's clear that we are talking about license here. However,
if it's important to you, I'll agree that it's license in the context
of copyright rather than license to use an otherwise reserved
copyright.
> I think the rest of your last message either expresses agreement or is
> addressed above, except the question about whether MySQL advanced the
> full panoply of theories under which the distribution of mysqld+Gemini
> might not be permitted under the GPL. I'll hold off on that one
> unless and until I can get the full docket. Suffice it to say that
> the judge was not ignorant of Professor Moglen's claims of
> copyright-based license, over-broad definition of "derivative work",
> and all that. OK?
Ok.
I'll simply remind you that that case involved MySQL which was available
under dual-license. Thus it's not really direct evidence about the
scope of the GPL -- only on the scope of the GPL when the proprietary
MySQL license is also a legally valid option.
[I'm once again guessing about your points here, but I don't think I'm
too far off base.]
Thanks,
--
Raul
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