Re: RES: What makes software copyrightable anyway?
On 5/17/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> 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 .
You're claiming that GNU Public License, under law, will not be
treated as a copyright licensee but as a contract.
Further, you're claiming that violations of that license must
be treated by the court as conduct within the scope of that
contract.
Further, you're claiming that people (such as myself) who
claim otherwise are ignorant of the law.
I think you're being rather presumptuous.
> > "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
...
> 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.
So?
> > 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).
Ok, again it seems like you're being presumptuous.
> > > > > [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).
> > > 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?
A proper restatement would be "Only Z and X are significant to
this kind of case."
That said, a court could decide that if you do not own copyright
on some software B, which does not satisfy the terms of the
GPL, then the act of creating and distributing derivatives
combining GPLed work A and software B are outside the scope
of the GPL.
> Do you have in mind some W that is also possible?
Yes. That in contexts where the return obligations are
expressed as copyright licensing requirements, that
these return obligations will be treated as qualitatively
different from other sorts of return obligations.
If you're the copyright holder, that's one thing. If you're
not the copyright holder you can be expressing an intent
to violate two licenses. If the GPL copyright holder and
the other copyright holder bring suit against you together
you could be in for some serious legal problems.
> 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.
This bogus constraint rules out any consideration of the GPL.
If this is the essence of your claims about what the significance
of the GPL, I wish you'd take it elsewhere.
> > 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 .
I know that's what you're saying. I'm saying that you've
not shown that D and C correspond to derivative works and
collective works as defined by law.
> > > 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.
In other words, this disjoint thing is not an issue.
> 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 other words, this disjoint thing is an issue.
That's... trivial.
> > 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.
I think you mean "I_WANT_OPENSSL" is only incorporated into
the text of Quagga.
However, I_WANT_OPENSSL is only relevant in the context of the work
combining all three components and is evidence that the work combining
the three has been modified after these components were selected and
combined.
> 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.)
Except, here we're discussing your bogus assertion that collective works
and derivative works are disjoint. And you're still not providing any
reason to believe that this assertion is true. Above you've stated that
the law doesn't care about the level of pedantry required to make this
assertion.
> The fact remains that Quagga + NetSNMP + libssl is an
> uncopyrightable collection with trivial selection criterion.
That's an opinion which you are promoting.
--
Raul
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