Re: RES: What makes software copyrightable anyway?
I think this message contains the last that I have to say on this
topic. Individual questions are still welcome, but I don't feel the
need to rebut further.
On 5/16/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/16/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > 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.
That's not true. The higher court said that the lower court had
failed to justify the use of a copyright infringement standard. The
circuit court then proceeded to tutor the district court in how to
distinguish between facts that limit the licensor's recourse to breach
of contract (as in Graham v. James) and facts that indicate that the
licensee's conduct exceeded the scope of license and was therefore
actionable under copyright law (as in SOS v. Payday). The circuit
court took no stance on whether the Sun v. Microsoft facts indicated
one or the other.
> In other words, the part I quoted wasn't the error.
Is that so? Here's your quotation:
> quoting http://caselaw.lp.findlaw.com/data2/circs/9th/9915046.html
>
> The parties also disputed whether Sun's suit was properly
> considered as one for copyright infringement, as Sun con-
> tended, or as one for breach of contract, as Microsoft con-
> tended. The district court concluded that the claim was
> properly considered as an infringement action, thereby enti-
> tling Sun to a presumption of irreparable harm.
>
> It looks to me as if at least some courts will make a distinction
> between breach of contract and copyright infringement.
That would be the district court's principal error that you're quoting.
> > 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.
What do you think the appeals court asserted? I stand by my
statement: in the absence of a proper analysis of the scope of
license, the district court's judgment was wrong. And, I might add,
the district court, on re-hearing, dismissed Sun's copyright
infringement claims on the basis of a proper contract analysis. The
district court's order may be found at
http://java.sun.com/lawsuit/050800ruling.html .
> > 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
OK, let's give this quote some context:
<quote>
10. What are some of the "big cases" that have defined and are
defining boundaries in the free software and open source software
areas?
The SCO v. IBM lawsuit is a monumental case, so it gets considerable
coverage, but that case is only tangentially related to free and open
source software licensing issues.
One case where actual terms of the GPL were at issue is the MySQL v.
Progress Software case, in which mySQL released software under the
GPL. Progress Software allegedly distributed the plaintiff's software
without source code and while redistribution is permitted under the
GPL, the source code must be provided as well. Ultimately, the parties
settled. 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.
</quote>
So "this area" is short for "the free software and open source
software areas", not "the area of copyright licenses". Try again. Or
rather, don't, not for my benefit, anyway.
> 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.
No, a legal professional who draws a different conclusion from the
entire body of case law applicable to his jurisdiction is on crack, or
something similarly mind-altering (ideology, for instance).
> > > > [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 am doing nothing of the sort. The paragraph is structured like so:
"Generally, X. If, however, Y, then also Z." I restated it as: "Only
Z and X are possible. In the absence of Y, not Z, only X -- even if
Q." Do you have a problem with that? Do you have in mind some W that
is also possible? If so, bring it on -- together with at least one
case in any jurisdiction in which that theory W was used to reach a
verdict. I think you'll find that that rules out the Tort of
Miscellaneous Offense.
> > <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?
See above. Your style of argumentation is getting, shall we say, less
than incisive.
> 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.
This is so utterly unlike actual contract and damages analysis that I
simply am not going to bother to rebut it. If you believe this is how
the law works, I weep for you.
> > > 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]
This, precisely, is the point at which I have lost interest in further
discussion with you on this topic.
> > > 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.
Is anyone else having difficulty distinguishing between the element x
and the set d(x)?
> > > 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.
Whatever you say, Humpty Dumpty. (And if you don't get that
reference, it's been too long since you read Lewis Carroll.)
> 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.
No, I'm saying:
d(x) is the set of derivative works of x
x \in C does not imply that d(x) \subset C;
on the contrary, d(x) \subset D for any x, and D \intersection C = \null .
> 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.)
How about this one: C is the set of even numbers. D is the set of
odd numbers. d(x) = \{ x-1, x+1 \}.
> > 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?
The law doesn't give a damn about this level of pedantry. The law
cares about who has a cause of action against whom under what theory.
As I have repeatedly pointed out, by the time you are talking about
the degenerate case in which a collection of translations has very
nearly the same text as a translation of a collection, the law stops
playing mathematics and says that, either way, the resulting work
infringes the selection-and-arrangement-creative-expression in the
original.
But no amount of splitting hairs over in this corner of semantics
makes X+Y+Z a "derivative work" of any of the above. And for that
contention I've given you ample support in law.
> > 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.
Authorizing someone to translate your work doesn't authorize them to
anthologize it, and vice versa. If some perverse person insists on
writing the authorization as "you may create and publish any
derivative work of my autobiographical novel
Belly-Button-Lint-Picker," then you may publish a "translation,
adaptation, or other alteration", but you still may not put it in an
anthology. That's a different kind of "work that copies protected
expression from the original" -- a collective work instead of a
derivative work.
Note that the _only_ purpose for which _any_ of this hair-splitting
matters is when someone writes the phrase "derivative work" into a
contract. That's what a "limitation on the scope of license" means --
license to copy for some purposes but not for others.
> > > 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?
What is this "restate in your own words" game? What part of "A
'derivative work' is ... any ... form in which [one or more] work[s]
may be recast, transformed, or adapted" is hard to understand? What
part of the legislative and judicial history, describing the different
rationales for protection of the categories now known as "derivative
works" and "collective works", is a subject of dispute? (Those,
actually, are rhetorical questions, which you need not attempt to
answer.) Collective works are not now, nor have they ever been, a
flavor of "derivative work under copyright law".
> > > 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.
I_WANT_OPENSSL affects only Quagga. As I wrote earlier, there's a
case that the set of decisions that go into setting up a particular
build environment constitutes enough creative expression that the
binary is technically a "derivative work" of the source rather than a
mechanical copy of it. (You could say that it's a lossy mechanical
copy of the build environment + source code.) The fact remains that
Quagga + NetSNMP + libssl is an uncopyrightable collection with
trivial selection criterion.
> 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.
I have lost hope in your coming to an understanding of anything that
is contrary to your fixed ideas about what the GPL must mean in order
for the sky not to fall. If no one other than you has a question for
me at this point, I shall retire from this particular field. Feel
free to crow victory if it makes you happy.
Cheers,
- Michael
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