Re: What makes software copyrightable anyway?
On 5/12/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > This doesn't do anything for the distributor of copyright infringing
> > software. 17 USC 117 only protects users of that software.
>
> Stipulate that, _contrary_to_law_, we read "mere aggregation" to mean
> _only_ on storage media and _only_ at the level of putting debs or
> tarballs side by side within a CD image, and permit no other
> "collective works" AT ALL, for lack of sufficiently explicit language
> in the GPL.
That would be a rather serious mistake. One I see no benefit
in making. The GPL does make statements which are relevant
to collective works, and we are discussing the implications of
some of those statements.
Haven't we gotten past the false dilemma where you claim
derivative works and collective works must be disjoint sets?
> In the dynamically linked case, the only time at which
> even an uncopyrightable collection-with-trivial-selection-criterion is
> created, other than under the stipulated "mere aggregation" exemption,
> is at run-time.
False:
The full collection must be present on the machine for any system
where the software is not broken. It doesn't just spring into existence
when you choose to notice it.
> > The closest the GPL has come to being nullified is the preliminary
> > injunction in Progress Software v. MySQL, where the judge granted
> > a preliminary injunction preventing Progress from distributing or
> > sublicensing MySQL, and deferred other consideration to MySQL pending
> > a full trial.
>
> This is hogwash.
quote:
Accordingly, the Court orders that Progress be preliminarily enjoined,
pending a trial on the merits, from:
(1) Promoting or selling any products and services using the
MySQL mark in any form.
In other words, they're not only prohibited from distributing MySQL,
but also such products.
And, in fact, I can find no evidence that Progress does distribute
MySQL.
Is the Progress DBMS really a re-named MySQL? That would
seem to be legal suicide, unless they really do intend to release
their DBMS under the GPL, and pay MySQL's court costs.
> The judge granted a preliminary injunction against
> use of MySQL's _trademark_ without license in Progress's promotional
> materials.
Not just the trademark, but the products which are labeled with that trademark.
> She carefully stated that Progress was entitled to
> continue to use the trademark in certain ways that do not require
> license, such as "stat[ing] that its product operates with the MySQL
> program". Then, she evaluated the separate request for preliminary
> injunction on GPL/copyright grounds, and denied it, explicitly
> sanctioning Progress's continued "use of the MySQL program under the
> GPL".
Sure -- on the grounds that Progress had more to lose, here, than
MySQL.
> > His reasoning was that granting a stronger preliminary injunction
> > against Progress would destroy that company and thus render the
> > trial irrelevant.
>
> _Her_ reasoning (don't you even read the opinions you mangle?) was a
> great deal more conformant to applicable law and procedure than you
> imply, as I have repeated time and time again.
>
> http://pacer.mad.uscourts.gov/dc/opinions/saris/pdf/progress%20software.pdf
The problem here is that MySQL failed to demonstrate irreparable
harm --in terms of precedent, that doesn't mean that there is no
such harm, just that they didn't demonstrate it. Also Progress Software
did demonstrate irreparable harm, should that part of the injunction
be granted.
This was a preliminary injunction. You shouldn't read it as if it were more
than that.
--
Raul
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