Re: RES: What makes software copyrightable anyway?
On 5/14/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> 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.
>From my point of view, I was dismissing them as tangential or
irrelevant to the point I was making.
In that specific case, the appeals court was not claiming that the
district court had drawn a conclusion which by its nature must
be incorrect. The appeals court was asserting that the district
court had not adequately described its reasoning.
> 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.
My impression here is that you're overgeneralizing. I'll
try to be more specific about some of the generalizations
I think you've made which I think are incorrect, but first
I'm going to make a general statements myself. This
needn't always true in all cases, but it's true enough that
I think it's worth considering:
The more text you need to quote from a court decision to
make a point, the more specific the context is, to that case.
You're pasting in long quotes about specific cases and then
asserting that they must apply to all other court cases. But
the primary argument I see you using to back up this
assertion is false dilemma
http://atheism.about.com/od/logicalfallacies/a/falsedilemma.htm
Asserting that concepts are disjoint does not make them disjoint.
In the general case they might be disjoint, but that's a broad
and sweeping statement, with some perhaps non-obvious
implications. Not only is this "x and y are disjoint" easily
disprovable with a single example, in the context of law,
it's a statement which you should be very suspicious of if
you don't have some explicit and concrete reason to believe
it's the case.
Likewise, a small body of existing case law grounded in
the law of contracts (fair exchange) does not mean that
the law of torts (fair morals) is irrelevant.
In this case, the court itself had the opportunity to assert
that the law of contracts must always apply in copyright
cases. They didn't make that claim. Instead, they were
careful to state that that claim needn't be true for the
general case. They were careful to allow that it might
even be true in this case. They limited themselves to
asserting that the district court hadn't described their
reasoning in this case.
> 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?
No, not in any of the threads this past week.
> And have you cited any case law which anyone other than yourself
> believes to actually support you on a point where we disagree?
That's a red herring -- specifically it's an an attempt to use the
bandwagon fallacy.
Mind you, it's entirely possible that I've made mistakes -- I do make
mistake, all too often. And, if people [including yourself] point out
to me that I've made a mistake I do respect that. But only to the
degree that I understand their point. And, even there, I might not
agree with their point. But that's doesn't seem to be what you're
asking, here.
> 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.
I think you're trying to set us up for another false dilemma, but
I'll give it a shot.
> [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?
That's not what it says. Here's the basic structure I see:
"Generally, ...If, however, ..."
Basically, it's saying that if someone has been granted permission
to do something they can't be sued unless they're acting outside
the scope of that grant of permission.
I don't see how this is in any way surprising, or how you get from
there to "a license is always a term in a 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?
Sure -- in this context, "scope" refers to an range of actions.
Specifically, the actions which are allowed in the context in
question.
> Are you at least willing to take seriously my assertion that this is
> absolutely critical to understanding the legal significance of the
> GPL?
There's some things that you've said here which I do not take
seriously. There's other things you've said here which I do
take seriously. Since, in this context, the word "this" could
legitimately refer to either, my answer is: no and yes.
> 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?
That's a pretty big if, and one I do not take seriously. However, if
somehow you did show that it was true then I would agree that it
was true.
> > 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).
This is getting pretty repetitious on the question of whether or not I'm
capable of understanding what I read, so I'm just going to focus on
Progress Software v.MySQL.
As I understand it, we have a preliminary injunction in that case, and
the parties settled out of court. Since the rules for preliminary injunctions
are different from the rules used to resolve trials, you need to be very
careful when trying to understand the meaning of the precedent.
Also, as with any case, the precedent is specific to that trial. The
court is not obliged to consider evidence and arguments which
were not presented at that time.
It's entirely possible that I've overlooked something important about that
case which means that I'm wrong about understanding of the specific
condition in which that case exists But that preliminary injunction would
still be only a preliminary injunction and that case would still be only
that case.
And, I doubt very much that the judge presented concluding remarks
stating "the only legal theory under which any licensor can
successfully sue is breach of contract".
> > 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.
An assertion which you yourself seem to have contradicted.
If derivative works and collective works are disjoint, you could not
have a work which is both -- there would be no such thing as a
derivative of a collective work.
At this point, my best guess is that you don't understand what
"disjoint" means. My apologies if you do, but allow me to
go over this point:
If set A is disjoint from set B then you can't have any elements
which appear in both sets. In this context, the existence of a
work which is a derivative of a collective work shows that
derivative works are not disjoint from collective works.
Or are you claiming that if I make a derivative of a collective
work (let's say that the collective work is the 2005 print edition
of the encyclopaedia britannica, so we have a concrete
example) that it always ceases to be a collective work?
For that matter, would you claim that the 2005 print edition of
the encyclopaedia britannica is not a derivative of the 2004
print edition?
If you agree that these cases can legitimately be recognized
as derivatives, how do you rationalize your claim that derivative
works and collective works are disjoint sets?
> Or is there something else you wished to remind me about, where that
> assertion is concerned?
No, let's just work through these specific issues.
We seem to be having problems with basic logic, but perhaps it's
really problems with what the words mean.
And, my apologies if the problems we're having here are in any
way the result of my conduct in this argument.
Thanks,
--
Raul
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