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Re: LGPL module linked with a GPL lib

On 7/30/05, Ken Arromdee <arromdee@rahul.net> wrote:
> By this reasoning, if linking is normally a breach of rights, I could give you
> some BSD licensed software and do exactly the same thing.  I am estopped from
> suing you for linking with my BSD software, but I can still prevent other
> people from helping you link with it, since the linking is still infringement
> despte the license telling you you can do it.

But the GPL doesn't tell you in so many words that end users have a
"license to link".  As I wrote, to get to end-user safety without
really looking at the interactions between linking and the GPL
language, you need to combine a statutory provision that narrows the
rights reserved to copyright holders (17 USC 117) with a negative in
the GPL (suggesting that, if things that happen during end use don't
qualify as "modification" in a copyright sense, then they're entirely
outside the GPL terms).  In this view, the deliberate excision of
"right to use" in the GPL v2 (apparently for the sake of bolstering
the "copyright-based license" fiction) leaves end users not with a
_license_ -- that's a term in a contract -- but with an _estoppel_
argument against attempts to sue them for doing things that the
copyright holder implied they were permitted to do incident to normal

(End users could also argue, entirely on statutory grounds and without
reference to the GPL text at all, that they became the "owner of a
copy" under the Section 109 standard when they obtained it in good
faith from a presumptively licensed distributor, and proceed directly
to their Section 117 rights without need for estoppel.  But this
cannot of course be used circularly to protect the distributor.)

The BSD and MIT X11 "licenses", as I read them, are pure creatures of
estoppel and not copyright licenses (in the sense of binding contract
terms) at all.  Their unilateral grant is so broad as to protect both
end use and distribution; but as no one has accepted any significant
obligation of return performance, only a "reliance to one's own
detriment" argument supports a claim that the copyright holder can't
abrogate that grant at any moment.

> If I give you some software and say that you can link it in private, that's
> *permission*.  The GPL doesn't need to override the meaning of "infringement",
> because it already has a meaning, and that meaning already says that if you
> have permission to do it, it isn't infringement.  If it isn't infringement,
> helping you do it can't be contributory infingement.

As I wrote, a copyright infringement claim could only be brought home
against the distributor "_if_ it were correct that the act of linking
breached rights reserved to the copyright holder."  Suppose the end
user's actions are in principle infringing but the copyright holder's
statements have led to a sort of half-assed estoppel-based substitute
for a license.  Then there is no guarantee that someone who _is_
unambiguously engaging in copying and modification (and therefore
needs the license offered in the GPL) can rely on the end users' de
facto immunity from suit as a defense against claims that end users
are being encouraged to bend the rules.  That wouldn't really be a
copyright infringement claim, though; it would be a claim of breach of
the duty to deal in good faith implicit in any contractual
relationship, argued as grounds either for recovery of damages under
the contract or for rescission of the contract so that a copyright
infringement claim can proceed.

> >Compare, for instance, Micro Star v. FormGen.  You could argue that
> >the "unauthorized sequel" didn't really exist until an end user loaded
> >the MAP file into Duke Nukem, and Micro Star neither authored the MAP
> >files nor distributed them together with Duke Nukem.
> Oh, come on.  FormGen claimed that the MAP files themselves were infringements,
> because they used the game setting.  It didn't matter that the user linked
> them, because they were unauthorized sequels all by themselves.  This was one
> of the distinctions the court made between it and the Game Genie case, because
> in their view the Game Genie only lets consumers create derivatives, but the
> MAP files are derivatives.

The Game Genie case did _not_ conclude that consumers were creating
derivatives; as the Micro Star opinion comments, the discussion of the
"fair use" defense in Galoob was dicta based on a hypothetical.  As
for the contention that MAP files were "unauthorized sequels all by
themselves", I do think it's a bit subtler than that, though I can
understand your reading the opinion that way.  Observe Footnote 5: 
"We note that the N/I MAP files can only be used with D/N-3D.  If
another game could use the MAP files to tell the story of a mousy
fellow who travels through a beige maze, killing vicious saltshakers
with paperclips, then the MAP files would not incorporate the
protected expression of D/N-3D because they would not be telling a
D/N-3D story."  This amounts to a declaration that the MAP files are
not really "unauthorized sequels" in isolation, but that they have no
substantial use other than combination with Duke Nukem to create
unauthorized sequels.

> # More significantly, Nintendo alleged only contributory infringement--
> # that Galoob was helping consumers create derivative works; FormGen here
> # alleges direct infringement by Micro Star, because the MAP files encompass
> # new Duke stories, which are themselves derivative works.

The contributory / direct infringement difference is kind of
interesting from a tactical point of view, but IMHO it's not the
important thing.  The Game Genie was simply a ROM-fetch-diverting
machine that attached between game console and cartridge, supplied
with a set of reverse engineered codes indicating which bytes to
replace in order to change various player-character attributes in
various games.  Claiming that it did anything to the "creative
expression" in the games was a stretch to begin with; but the Galoob
court took the easy way out and said that the modified game experience
wasn't a "derivative work" because it wasn't in a "concrete or
permanent" form.

The writer of the bit you quoted from the Micro Star opinion (Judge
Kozinski or, perhaps more likely, his elbow clerk) picked the
contributory/direct distinction as a handy way of distinguishing Micro
Star from Galoob on the facts, and therefore disposing of the argument
that the court was obliged to follow Galoob's ruling per stare
decisis.  However, as the previous sentence indicates, the Galoob
holding wouldn't have been dispositive anyway:  "But the fair use
analysis in Galoob was not necessary and therefore is clearly dicta." 
This, ironically, makes the sentence you quoted dicta as well.  Had I
been writing the Micro Star opinion, I think I would have
de-emphasized "contributory vs. direct" (which leads, given different
fact patterns, to unprofitable hair-splitting about encoding patches
as editor commands so they don't contain literal text from the
original, etc.) and focused instead on "substantial non-infringing

If I may say so, this illustrates the dangers of myopic quotations
from case law (and statute).  That phrase "more significantly" is
impossible to assess properly without context.  The
contributory/direct distinction may be in a technical sense more
significant for the purpose of distinguishing a potentially
dispositive precedent than the mere observation that the parallel
argument in the precedent was an alternate holding.  That doesn't make
it the main thrust of the Micro Star opinion.  I read it principally
to conclude that copyright holders on computer programs that double as
works of fiction have recourse, irrespective of the technical details
of how parts of the original are recycled into a sequel, to the
traditional standard of comparing "objective details of the works:
plot, theme, dialogue, mood, setting, characters, etc."

Let me restate that a little less polysyllabically.  Apparently Micro
Star's lawyers argued, among other things, that the facts of its
dispute with FormGen resembled those of Galoob's dispute with Nintendo
closely enough that Micro Star would be entitled to the same
conclusions about "fair use" that (according to them) got Galoob off. 
If they had had both the facts and the structure of the Galoob opinion
straight, the panel would have been obliged to follow precedent --
especially since the district court bought a related argument from
Galoob, by which it concluded that Micro Star's product wasn't a
derivative work in the first place.  So a large fraction of the Micro
Star opinion is devoted to explaining what makes Duke Nukem MAP files
a derivative work in a way that no machine, blob of bytes, or sensory
experience in Galoob was.

The opinion asserts:  "In the present case the audiovisual display
that appears on the computer monitor when a N/I level is played is
described--in exact detail--by a N/I MAP file."  I think that's a bit
of a stretch, but it's forgivable because it's contrasted with "no one
could possibly say that the data values inserted by the Game Genie
described the audiovisual display."  The opinion then engages in a
bunch of fancy dancing to circumvent the Galoob court's laziness in
focusing on "concrete or permanent" form instead of the real issue --
the fact that the Game Genie "modifications" were too trivial to
"represent an original work of authorship" and so it was totally
inappropriate to look to the provisions about "derivative works" in
order to decide whether they infringed.

After the fancy dancing, we get three paragraphs on the "fair use"
defense, including that somewhat curt dismissal of the parallel to
Galoob, which is neither binding (because that bit of Galoob was
exploring a counterfactual, "what if we did grant that a derivative
work had been created") nor adequately parallel on the remaining facts
(the bit you quoted).  Then we get one paragraph on a claim of shelter
under an implicit extension of the Duke Nukem license terms, and one
on a vague estoppel-ish theory that "FormGen abandoned all rights to
its protected expression" by encouraging end users to create new
levels.  These bits are all citable as precedent, even as binding
precedent, but they focus pretty closely on applying existing law to
the fact pattern so as not to create obstacles for a later court to
jump if the facts before it require the articulation of new law.

Now I'm no lawyer and I don't have any personal communications from on
high to back up the interpretation above.  But it seems to me that,
while the holding in Micro Star is substantially better thought out
than that in Galoob, there's still room to replace the contorted
analysis based on "when, exactly, was a derivative work created?" with
something better connected to creative expression.  Now that the Ninth
has thought through the "substantial non-infringing use" analysis in
the context of Napster and Grokster, maybe they can be persuaded to
apply it consistently when faced with claims like Nintendo's and

- Michael

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