Re: RES: What makes software copyrightable anyway?
On 5/21/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > 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.
After looking at this for a bit, I'm thinking that Quagga is based on
libsnmp and that libsnmp is based on libssl.
> The fact that they are independent works of authorship, gathered into
> a collection, matters.
How could Quagga have been written without libsnmp?
How could libsnmp have been written without libssl?
[Answer: they'd each have been very 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?
I find it hard to imagine a court case about whether or not contract law
is the only way to create a copyright license.
I find it easy to imagine that a court would be only concerned about
determining the facts about copyright license in the context of
specific cases.
Ultimately, though, what a court is typically concerned with
in cases involving copyright claims is whether the copyright
is being infringed (and, if it is, whether that matters, legally).
Informally, it's convenient to talk about things without trying to
mimic the exact path a court might follow ever time a new concept
is discussed. If we're going to sidetrack on every fine minute
point, we'll be forever stuck on issues like "Louisiana has used
civil law instead of common law" or "Judge Bea isn't likely to
care about that kind of precedent".
> > 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?
Well, let's put it this way... I see stuff like this:
http://library.findlaw.com/2003/Jun/16/132811.html
"Progress alleged breach of contract, tortious interference with
third-party contracts and relationships, unfair competition and
several similar business-related torts. Progress also sought
declaratory judgment as to its trademark rights and other rights
relating to its sale and distribution of the MySQL software."
I find it hard to believe that they'd have filed those charges if
the only contract involved had been the GPL.
> 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).
I don't believe I've mentioned anything about co-alignment of stars.
I do believe that my specific point here, which I'm guessing you're
trying to refute, is a point which is based rather heavily on
contract law.
> 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?
Since I don't really know what you're talking about here, I'm not going
to attempt to answer.
However, I will (perhaps foolishly) hazard a guess -- I've suggested
elsewhere that it would be possible to construct a copyright case
whose principle charges are outside the domain of contract law. You
might be thinking that I really meant that some existing case should be
handled in that fashion.
Please be assured that I'm thinking that cases should be handled on
their own merits.
Thanks,
--
Raul
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