Re: RES: What makes software copyrightable anyway?
On 5/20/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/20/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > On 5/19/05, Raul Miller <moth.debian@gmail.com> wrote:
> > > But the ambiguities have to be valid ambiguities.
> > >
> > > That's where we seem to differ on this issue.
> >
> > I think there is little question that the "work based on the Program"
> > definition + erroneous paraphrase in Section 0 is either: 1) a "valid
> > ambiguity" (to be construed against the offeror on the licensee's
> > request), or 2) unambiguously readable only as "derivative work under
> > copyright law", because the paraphrase is so weakly attached as to be
> > an implausible candidate for a definition even if the licensee wanted
> > it that way. Perhaps you would now agree to this "either/or", without
> > any implications for whether my reading of the phrase "derivative work
> > under copyright law" is correct?
>
> I'm going to tackle this in two pieces. First I'm going to critique
> your presentation, then I'm going to try to tackle the issues I
> think you're raising. Be warned that I may have misunderstood
> you.
The paragraph I wrote was somewhat cryptic, and I think you did
misunderstand a little. Once more unto the breach:
Stipulate, for the moment, that "either the Program or any derivative
work under copyright law" (candidate E) and "a work containing the
Program or a portion of it, either verbatim or with modifications
and/or translated into another language" (candidate C) are not
obviously equivalent.
Under contract law, it is necessary to construe a single definition
for the clearly delimited phrase "work based on the Program" -- a
phrase with no a priori legal meaning -- out of the text of section 0
as written, along with any other evidence that may be demonstrated to
reflect a binding intention on the licensee's part. This construction
must, as a matter of (common law) principle, be done "against the
offeror" -- i. e., by choosing, from among the plausible readings of
the text, the one least favorable to the offeror's position in the
case at hand.
Personally, I think that candidate C is so weakly attached
grammatically as to be not plausible as a replacement for the
definition given by candidate E. But suppose one were to call this a
significant ambiguity in the text.
At this point, and only at this point, do we need to bring in the
actual meaning of "derivative work under copyright law", as discussed
elsewhere. As I read it, candidate E is still the correct
construction. That's because it is less favorable to the offeror, as
it draws narrower bounds on which "works based on the Program" have to
be offered entirely on GPL terms. In this construction, the licensee
does need to provide a theory under which the he is granted permission
to create and distribute "collections" (with or without a selection
criterion that raises them to the level of "collective works") that
contain a "work based on the Program"; this is addressed below.
Is that better?
> Presentation: Logically, you seem to have assumed that the clause
> in question is erroneous, and you draw conclusions from this
> assumption. In other words, but your conclusions seem to be
> don't seem to add much to your initial assumption.
I was attempting to use the phrase "erroneous paraphrase" just as a
name for candidate C above. As stated more clearly above, the notion
that it is erroneous doesn't enter into the logic until you try to
resolve the ambiguity against the offeror.
> Issues: As near as I can tell, section 0 of the GPL establishes what
> is being licensed by the GPL. To my knowledge, no works which are
> not explicitly recognized in section 0 are being licensed. Section 0
> also seems to establish the scope of the license -- which is something
> you've expressed strong interest in. Other sections which grant
> permissions explicitly do so "under the terms of this license" which
> includes section 0, or under the terms of section 1 (which refers
> to "the Program" of section 0), or of section 2 (which must be
> under the terms of section 1).
The question being asked in "scope of license" analysis is, what
rights reserved to the copyright holder, as defined in 17 USC, are
being made available for exercise by the licensee, whatever the return
consideration may be? In the case of the GPL, the licensed rights
include copying and distributing the Program itself; modifying,
adapting, translating or otherwise creating a "work based on the
Program", and copying and distributing the result; and aggregating a
"work based on the Program" with other material and copying and
distributing the result.
In another license, the scope might be as narrow as "translate
alternate pages into French and German and publish the result on
Post-It (TM) Notes"; but "as long as you pet a cat on alternate
Tuesdays" isn't part of the scope of license even if it's the first
clause in the agreement text. "As long as you [do anything]" is
contract law stuff, even if [do anything] logically requires exercise
of the rights under copyright that are being offered to you.
I think that there's really no question, no matter which path you take
to construe "aggregation", that it includes both the creation and
distribution of copyrightable collections (such as distro CDs) and
uncopyrightable collections (such as Quagga+Net-SNMP+libssl). It
seems clear to me that the correct path of construction uses the
"meaning under copyright law" of "aggregation", rather than some
computer industry expert witness's idea; but that's up to a court of
fact. It's quite possible that an appellate court in a common law
system would not have the authority to change the court of fact's
ruling on that point as long as it was clear that the lower court had
followed the appropriate rules of law in arriving at its construction.
If you read appellate cases like Sun v. Microsoft and SOS v. Payday,
you will see that the focus of "scope of license" is on what 17 USC
rights are on offer with regard to what works in what forms, not on
what return obligations the licensee may have. Even if you want to
argue that an aggregation of sources is not the same form of work as
an aggregation of binaries, there is no question that the GPL permits
the latter under some circumstances of licensee conduct. You might
argue that it attempts to condition it on the former, but that kind of
conditional relationship has no effect on the "scope of license" and
is the domain of contract law, not copyright law. (IANAL, TINLA.)
> More simply, "the Program" and a "work based on the Program"
> are the things that are being licensed. Construing them narrowly
> does not seem to be an argument in favor of the licensee except
> for the case where the thing being considered does not need to
> be licensed under the GPL.
>
> If the only cases you're talking about is a case where the GPL
> doesn't eed to license the work in question, I have no dispute
> with you on this issue.
You don't license things, you license rights with respect to a work on
which you hold copyright. You don't license a "work based on the
Program", you license the right to translate, adapt, etc. your own
work -- perhaps under terms by which the license does not become
effective until you approve the result. Licensing the creation of a
"derivative work of the Program" simply licenses the grab bag of
rights defined in the national implementation of the Berne
Convention's category "derivative works". And the GPL certainly
licenses the right to aggregate a "work based on the Program" with
other stuff, which amounts to the 17 USC definition of "collective
works" plus other, uncopyrightable, collections.
> > is in dispute. Let's go with, "whatever the cause of action under
> > discussion, a claim of (non-exclusive) license to a copyright is
> > always viewed through the lens of contract law, and construed
> > accordingly." OK?
>
> I think you're still overstating that. For example, consider
> statutory license, such as that granted by 17 USC 117.
That's not a "copyright license", any more than "fair use" is. It's a
statement that certain kinds of "copying and adaptation" incidental to
the use of computer programs are not rights reserved to the copyright
holder and cannot be used to prove infringement under 17 USC 106.
"Copyright license" applies only to those rights that it is within the
copyright holder's power to grant or withhold.
> I agree that you should expect to deal with contract issues in
> a copyright dispute, but I'm not comfortable agreeing that the
> scope of this issue is as broad as you've asserted.
"Copyright licenses are terms in contracts" is as firm a global
principle as you will find anywhere in law.
I think the rest of your last message either expresses agreement or is
addressed above, except the question about whether MySQL advanced the
full panoply of theories under which the distribution of mysqld+Gemini
might not be permitted under the GPL. I'll hold off on that one
unless and until I can get the full docket. Suffice it to say that
the judge was not ignorant of Professor Moglen's claims of
copyright-based license, over-broad definition of "derivative work",
and all that. OK?
Cheers,
- Michael
Reply to: