Re: RES: What makes software copyrightable anyway?
On 5/16/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > From my point of view, I was dismissing them as tangential or
> > irrelevant to the point I was making.
>
> You really think that it's tangential or irrelevant that the one time
> that you used a quotation from an appeals court to bolster your case,
> you were actually quoting the error that the district court had made,
> leading to the reversal of its decision?
The higher court agreed that the principle asserted by the lower
court was correct, but stated that the lower court had to provide
more than a few lines of text to support why the principle was
the deciding issue in this case.
In other words, the part I quoted wasn't the error.
> > 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.
>
> That's false. The appeals court asserted that the district court had
> failed to follow the prescribed procedure, which is to analyze the
> validity and scope of the claimed license, and unless it can be shown
> that the license did not apply (e. g., was terminated for material
> breach or authorized copying but not derivation), to deny all claims
> under copyright law. And therefore the district court's judgment was
> wrong. Period.
No, that's not what the appeals court asserted. The appeals court
asserted something much narrower.
> > 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.
>
> Almost every case I have cited has involved both tort -- i. e., the
> statutory tort of copyright infringement -- and contract law. There
> is a giant body of case law, from which I am quite confident you will
I'm going to quote from a Q&A on this topic at findlaw.com:
"Unfortunately, there's not a lot of case law in this area because so many
of these commercial issues get worked out prior to trial."
http://library.findlaw.com/2003/Dec/19/133224.html
You seem to disagree. I don't know why.
You are free, of course, to conclude that a legal professional
who draws a different conclusion from you is on crack.
> > > [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.
>
> No, it says that there's two relevant kinds of suits -- breach of
> contract and copyright infringement -- and that the latter recourse is
> not available to someone who has granted a license of sufficient
> scope, even if the licensee is in breach of return obligations under
> the contract containing that license.
You're making up most of that. (everything after the second "--").
> > 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".
>
> <quote>
> 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.
> </quote>
Generally is not always.
> What do you suppose "can sue only for breach of contract" means?
What do you suppose "generally" means?
In the case of the GPL, the requirements are expressed in terms
of license requirements. That's much harder to satisfy than
some dollar amount.
In principle, if I combine two works and produce and distribute a new
one which is a sequel to both of the originals, and one of those
originals is GPLed, I am expressing that I intend to see that
the other is licensed under GPL terms.
If I can't do so, I am liable to do so.
If I only have a billion dollars, and releasing the other work
under the GPL would cost me more than that, the court might
have to settle for a lesser penalty -- maybe I'll only get
charged a billion dollars.
> > 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.
>
> So strip away the cruft and tell me: what do you take seriously here?
There's too much cruft for me to be interested in this project at
the moment.
[snipping cruft]
> > 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.
>
> You are saying that if x \in C and C \intersection D = \null then d(x)
> \intersection C = \null. Do you see the error here?
I'm saying that if C and D are disjoint and x is a subset of C then x
intersect D is null. Likewise, I'm saying that if C and D are disjoint
and x is a subset of D that x intersect C is null.
Furthermore, I'm saying that these properties do not hold where
C is the set of works which are collective works and D is the set
of works which are derivative works.
I don't know what you're saying.
> > 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.
>
> No, it shows that the operation of "taking a derivative [work]"
> doesn't preserve the property "is-a-collective-work".
You're not talking about disjoint then.
Here you're saying there exists some x which is a subset of C
which is not a subset of D. This can hold regardless of whether
C and D are disjoint.
For example: C is the set of numbers which are divisible
by 2. D is the set of numbers which ar divisible by 3. x
is the set {10, 40, 80}. Here, the property which you are
asserting holds true, and the sets are not disjoint. (For
example, the number 6 is in both sets.)
> > 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?
>
> If you are creating a derivative work of a collective work (by
> applying the process of adaptation, translation, etc. to the whole)
> then the result is [technically] not a collective work -- it's a
> derivative work of the pre-existing collective work. On the other
> hand, if you are creating derivative works of the component entries
> and then freshly "selecting and arranging" them, then the result is a
> collective work.
What's your basis in law for making this claim -- that this derivative
is not a collective work?
> In practice, you could reach pretty much the same text by, say,
> translating individually and then collecting, or translating the
> collection -- but what matters is that in either case, the same
> license is needed with respect to the same copyrights held by the same
> people, namely, the right to publish translated articles within a
> similarly selected and arranged collection. The holder of the
> "collective work" copyright on the collection can't authorize the
> translation of the individual articles without having been granted
> agency to sublicense translations by the individual copyright holders.
> Nor can the copyright holders on the articles band together and
> authorize a collection of translated articles that infringes the
> "selection and arrangement" copyright of the original collection.
Here you seem to have drifted off to start talking about the issues
surrounding cases where multiple parties hold copyright. Nothing
wrong with that, I guess, but it doesn't really bear on the labelling
requirements (a work can be a derivative work or a collective work
but not both) which you claim are law.
> > For that matter, would you claim that the 2005 print edition of
> > the encyclopaedia britannica is not a derivative of the 2004
> > print edition?
>
> I would claim precisely that. I would claim that the 2005 edition is
> a collective work, containing a different selection of articles from
> the 2004 edition. The reason that only the copyright holders on the
> 2004 Brittanica-as-a-collective-work can authorize the 2005 edition is
> that it copies most of, and therefore infringes on, the
> selection-and-arrangement creative expression in the 2004 edition.
How does this concept of infringement make the 205 edition not a
derivative work? Do you think you can restate the what the law
defines for derivative work in your own words and somehow
declare that this law holds without all the words that are actually
in the law or something?
> > 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?
>
> See above. A collective work is the product of selection and
> arrangement. A derivative work is the product of translation,
> adaptation, revision, etc. I am perfectly happy to play this game
> with you about whether the phrase "disjoint sets" is an overstatement
> when it comes to revising an encyclopedia, but you and I both know
> that it's a sideshow to distract attention from the fact that Quagga +
> NetSNMP + libssl is a collective work, not a derivative work.
I do think you're playing a game here.
I don't think that this game is at all relevant.
Also, I can point at evidence that says that the Quagga + NetSNMP +
libssl work has been specifically modified since it was first created.
(The I_WANT_OPENSSL build time option). By the logic you've
expressed, that makes it a derivative work of a collective work.
By your logic, then, this work is not a collective work.
Personally, I don't think your logic makes any sense, but
you seem to think you're sincere about it. I'm hoping that
by going over the fundamentals of what you're saying and
why you're saying it we can come to some understanding of
what your point is.
--
Raul
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