Re: RES: What makes software copyrightable anyway?
On 5/20/05, Raul Miller <moth.debian@gmail.com> wrote:
> (Note, I might come back to some of this later -- I need to
> think about whether I want to bother raising some issues, among
> other things --, but a few of these I have immediate questions or
> comments about.)
Yeah, I have some homework to do, too.
> On 5/20/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > > There is some question about whether Quagga+Net SNMP+libssl
> > > is uncopyrightable.
> >
> > No, there isn't. There's no "selection and arrangement" creative
> > expression there. It's silly to say that some third party could
> > obtain a copyright on combining those things and enforce it on the
> > Quagga copyright holders themselves. Copyright doesn't protect ideas,
> > it protects expression; and this is a "doctrine of merger" instance if
> > I ever saw one.
>
> Are you saying I could just as well select, say, libperl, apache, and
> mysqld and expect them to be "just as satisfactory' when combined with
> Quagga?
>
> Or are you saying that since the authors of Quagga already made
> that selection that no one else has to?
I'm saying that there is no "creative expression" involved in
"selecting and arranging" those three components. In modifying
Net-SNMP to add SNMPv3 support by calling routines from libssl, sure.
Likewise in modifying Quagga to publish routing tables via SNMP, using
Net-SNMP to do it. Perhaps even in further modifying Quagga to do
whatever it is that I_WANT_OPENSSL does to it. But selecting and
arranging the results? No. Even if you want to argue that there's
anything non-obvious left about it, the doctrine of merger of idea and
expression applies.
The fact that they are independent works of authorship, gathered into
a collection, matters. It means that the only traction that copyright
law can get on the act of gathering them is via the "collective works"
angle, which is (as I have repeatedly explained) designed to prevent
one anthology publisher from ripping another off by going straight to
the copyright holders on the individual entries. Now mind you, a
contract containing a copyright license can also contain pledges not
to distribute this or that collection, copyrightable or not; and maybe
even those pledges can be part of the "scope of license". But that's
different.
> > > 1. a. Official or legal permission to do or own a specified thing.
> >
> > Feeble. Get a real dictionary.
>
> Findlaw's legal dictionary says:
>
> 1 a: a right or permission granted by a competent authority (as of
> a government or a business) to engage in some business or
> occupation, do some act, or engage in some transaction which
> would be unlawful without such right or permission
>
> Better?
No. Perhaps you missed, two lines later:
c: a grant by the holder of a copyright or patent to another of any of
the rights embodied in the copyright or patent short of an assignment
of all rights
As I said before, pretty wordplay will get you nowhere in a courtroom.
If you don't want to know that contract law is the only way to create
a copyright license, then I suppose that I can't make you know it. Is
there anyone else reading who is still unclear on this point?
> > The non-GPL license option to MySQL had no relevance to that case
> > whatsoever. It was not claimed by Progress Software, it is not
> > mentioned in the opinion or in Eben Moglen's affidavit, and as far as
> > I can tell the judge may not even have known that existed. Unless you
> > have some piece of the court record that I don't yet -- in which case,
> > pony up -- this is a lame bit of misdirection.
>
> I'll quote the beginning of point 30 of that affidavit for you:
>
> MySQL AB engages in ``dual licensing.'' This means that it licenses
> a version of MySQL to be freely used, copied, modified and
> distributed by everyone under the GPL, and also makes versions
> of its program that are distributed to particular customers without
> the right of free distribution.
>
> I don't have at hand the claims of Progress Software, but Saris
> clearly was informed of this issue.
Hmm. I missed that. But in any case, is there any evidence that it
was claimed by either party to be relevant, or formed part of Judge
Saris's analysis in any way? To me, the opinion makes it quite clear
that it was not. Not that it matters, really; a precedent from a
court of fact isn't binding on a subsequent court of fact. But I'll
still shell out the $12 for Lexis 5757 if the law library (or a
friendly lawyer) will mediate.
You seem to be insisting that it was a random co-alignment of the
stars, rather than the mundane weight of precedent, that caused Judge
Saris to apply contract law standards to interpret the GPL and deny
MySQL's request for preliminary injunction on a claim of "breach of
the GPL license" (from MySQL's FAQ). If you want to retain that
illusion, I can't exactly disprove it without more data. Honestly
though -- is it remotely plausible that she, or any judge, would give
"copyright-based license" the time of day?
Cheers,
- Michael
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