Re: RES: What makes software copyrightable anyway?
On 5/13/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/13/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > If there are other specific statements which you found to be
> > insulting, please do let me know; it's possible that I have said
> > something else comparable to "behest of the FSF" for which a similar
> > apology is due.
>
> Thanks, but I'll take the current apology in the spirit it's intended.
>
> (I have better things to do than attempting to unearth insults.)
Fair enough. (Especially as I have some more retracting to do with
respect to that episode; see below.)
> > Are you using it at all?
>
> I've used a search bar on the findlaw cite, if that's what you're
> asking. Mostly, I've not gotten citations from my searches.
> It's quite possible that I'm not using the right search bar,
> but I can't think of anything else I might have done wrong.
>
> > Have you cited any case law in this entire discourse,
>
> Yes.
>
> You've even disputed some of my comments which
> these cites accompanied. (I believe "myopic" was one of
> the terms you used, in one case.)
You would be referring to your excerpt from Sun v. Microsoft, I
suppose -- a case to which I had previously drawn your attention, and
whose import your myopic quotation (go back and look; I believe that's
a fair word to use) got completely backward. Specifically, you
selected a fragment of the circuit court's summary of the district
court's decision -- which the circuit court demonstrated to be
incorrect, vacated, and remanded to the court of fact to try again.
When I quoted the relevant two paragraphs of the appeals court's
decision in reply, you copied the first sentence and said "Exactly",
completely ignoring the substance of the quoted paragraphs.
I'm not really trying to slam you here, which would be rather
inappropriate given that I am choking on crow just at the moment.
Rather, I am pointing out a specific case where you seem to have
failed to follow the legal argument. My assumption is that you are
capable of so doing but have read highly selectively under fire.
> This is ironic, don't you think? Here you are, abrading
> me about not having researched case law enough to
> draw the same conclusions as you have. And, yet,
> you're apparently disagreeing with yourself on
> simple issues about what I wrote.
All right, let me be more precise. Have you cited any case law in
this entire discourse which I didn't cite to you first -- that is,
have you added any case to the set of precedents under discussion?
And have you cited any case law which anyone other than yourself
believes to actually support you on a point where we disagree?
> > or given any indication that you have read the precedents
> > to which I have alluded, complete with convenient URLs?
>
> That depends on what you call an indication. In general,
> we've drawn different conclusions about what these precedents
> mean.
It is very hard for me to believe that you are reading these
precedents with the intention of understanding the legal reasoning
they contain. Allow me to challenge you to read and correctly
understand the implications of this single paragraph from Sun v.
Microsoft -- the one decision we have both cited.
[7] Whether this is a copyright or a contract case turns on
whether the compatibility provisions help define the scope of
the license. Generally, a "copyright owner who grants a non-
exclusive license to use his copyrighted material waives his
right to sue the licensee for copyright infringement " and can
sue only for breach of contract. Graham v. James , 144 F.3d
229, 236 (2d Cir. 1998) (citing Peer Int'l Corp. v. Pansa
Records, Inc., 909 F.2d 1332, 1338-39 (9th Cir. 1990)). If,
however, a license is limited in scope and the licensee acts
outside the scope, the licensor can bring an action for copy-
right infringement. See S.O.S., Inc. v. Payday, Inc., 886 F.2d
1081, 1087 (9th Cir. 1989); Nimmer on Copyright , S 1015[A]
(1999).
Do you understand from this paragraph that a license is always a term
in a contract, and that, given a valid license covering the scope of a
licensee's conduct, the only legal theory under which the licensor can
successfully sue is breach of contract? Do you understand what it
means for a license to be "limited in scope" and how this can result
in a cause of action for copyright infringement even in the presence
of a valid license for other conduct?
Are you at least willing to take seriously my assertion that this is
absolutely critical to understanding the legal significance of the
GPL? Will you acknowledge that, if it is an ironclad point of law in
every relevant jurisdiction that licenses are terms in contracts, you
(and everyone who uses and contributes to Free software) ought not to
be hoodwinked by the FSF's oft-repeated but false claim that the GPL
is a creature of copyright law?
> > Are you even pretending that your arguments have been informed by
> > research using FindLaw or any other source of references to the actual,
> > historical law?
>
> Complex question. [But I have, in fact, spent a fair amount of time
> studying the laws in question, and precedents.]
Studying them with the aim of understanding their methods of analysis
and their implications for future cases, or of finding some
microscopic loophole through which to shove the absurd conclusions in
the FSF FAQ? This is not a rhetorical question; this is a serious
invitation to you to consider whether you might have been misled on
some simple, basic issues such as whether the GPL must be construed
under the rules of contract law (and for that matter, whether that's
exactly what happened in Progress Software v. MySQL).
> From my point of view, most of our differences have to do with
> quantification issues. (Or, if you prefer, existential issues --
> basically, distinctions between "some cases" and "all cases".)
>
> Need I remind you of your assertion that collective works and
> derivative works must be considered disjoint sets?
An assertion which I have demonstrated to be correct under both 17 USC
and the Berne Convention; which others have exhibited as correct in
continental Europe and in Brazil; and which is consistent with an
overwhelming corpus of US case law in which a defendant who is
licensed to create one, and instead creates the other, is found to
have "exceeded the scope of license" and thus to have infringed
copyright.
Or is there something else you wished to remind me about, where that
assertion is concerned?
[snip discussion of glibc]
I think I may have gone off half-cocked on this one, and that Raul's
introduction of glibc into that past debate was perhaps ill-timed but
evidently not ill-intentioned. I retract the claim that Raul or the
FSF made that threat at that time. Today seems to have been my day to
embarrass myself. :-(
> > You implied that reproducibility of the build environment was
> > a factor in GPL compliance -- a statement perhaps applicable
> > to the LGPL (as I articulated in
> > http://lists.debian.org/debian-devel/2004/12/msg01753.html ) but
> > rather hard to construe in the GPL.
>
> It could be. I was convinced later in that discussion that this
> was not the case for current versions of GCC, but in the
> general case it is an issue to be concerned about.
Here we agree; in the general case it is a very serious issue for an
operating system to be advertised as stable but not to be
self-hosting. A very serious engineering issue. One which open
source licenses should perhaps be written to take into account. One
which the FSF generally declines to pursue -- nay, denies having the
power to pursue -- even with regard to packages licensed under the
LGPL (which ironically can be read to demand a stronger guarantee of
constructive availability of the tools to rebuild after a source-level
bug fix than the GPL can).
For the record, Debian and Debian derivatives are miles ahead of the
pack where self-hosting is concerned, and are the only class of
systems which I currently trust to be point-fixable by the end user in
critical places such as the C library, the toolchain, and the kernel.
[snip remaining discussion of glibc]
> > > Finally, having a seat on the technical committee isn't exactly
> > > a coveted role in the project. Mostly you have to put up with
> > > insults (and in that respect you're right -- yours have been
> > > fairly mild), and occasionally you get to tackle a problem
> > > that should never have happened.
> >
> > Thread at http://lists.debian.org/debian-vote/2004/03/msg00093.html .
>
> Maybe it's just my browser messing up, but I don't see any
> messages from Martin or Leader to the technical committee
> in Jan, Feb, Mar, Apr or May of 2004. Nor in the latter half
> of 2003, for that matter. http://lists.debian.org/debian-ctte/
>
> I'm guessing, but he might have made a suggestion to
> someone and they might have responded "but that's
> not what the technical committee is supposed to do"
> and he might have responded "oh, you're right" and
> left it at that.
With regard to the membership of the Technical Committee, and the
desirability of a position on it, I have little to contribute. In the
absence of any legitimate gripe about your use of that position, it's
a non-issue, and I apologize for dragging in that particular stack of
dirty laundry.
Ruefully,
- Michael
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