Re: RES: What makes software copyrightable anyway?
Raul Miller writes:
> 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.
The first threshold issue for treating the GPL as some sort of pure
copyright license is finding a basis in law for such treatment. The
US Copyright Act does not mention such a thing. Even in common law
countries, agreements to exchange things of value (such as rights
reserved under law) are customarily treated as contracts.
Copyright law sets certain basic rules and limits on what the rights
owner and general public can expect _by_default_. Although IANAL,
every holding in a copyright action that I know of has been based
either on that default set of permissions or on an explicit contract.
Claiming that you can have a non-contract copyright license, whether
it that claim is from the FSF's opinion or your own, is what wants
support. So far, Michael K. Edwards is doing a better job arguing his
position than you are arguing yours. It is wishful thinking -- even
though wishes occasionally come true -- to expect that courts will
agree with you in the absense of a clear basis in case or statute law.
Claiming he is being presumptuous without supporting that claim does
not help; it makes it seem like you have no better argument than a
belief that you and the FSF share.
Michael Poole
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