Re: RES: What makes software copyrightable anyway?
On 5/21/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> While these categories are exemplary and can be bent to cover
> previously uncontemplated forms of work, judges are quite aware that
> they do so at their peril. If you think that sister circuits'
> critiques of Rano v. Sipa Press are brutal, you should see what
> happens when an appeals court gets something wrong and it has
> significant public policy impact. What do you think would be the
> consequences of holding that a software vendor can win a copyright
> infringement suit based on an arbitrary combination of their software
> with other independently developed stuff?
I think you're talking about something different from what I'm talking
about. I'm talking about cases where the program as a whole
is granted special copyright protection beyond that of its individual
components. (That's a literal quote from the text you were responding
to.)
> The Ninth's use of precedents from the Second, and the citation from
> Nimmer, suggest that this is a principle of interpretation of
> copyright licenses that applies US-wide. I expect that similar rules
> apply elsewhere in the world (IANALIAJ). So we can all forget about
> termination for trivial breach, especially if it's inadvertent and
> cured at a reasonable stage in legal proceedings.
Sure. To understand this issue, it's probably worth looking at
section 1-106 of the UCC: Basically, in breach, the point is to
make it as if the breach had not happened.
In a truly trivial breach (de minimus) court isn't going to care at
all.
In some breaches, the court can declare that the infringement
was fair use (or find some other reason that the infringement
was legal).
In minor breaches, the court could easily declare that the
infringement constitutes a grant of license under the terms
of the GPL by the infringing party .
The GPL's termination clause only would kick in where none of
the above could hold -- and I think we can agree that that would
not be a trivial breach.
> As for termination at will -- I doubt that any court in any
> jurisdiction would permit such a thing with respect to the GPL, but
> there is certainly room for a tactical choice of law and venue there.
> That's why sane people write "choice of law" provisions (not
> necessarily "choice of venue", which is controversial, and often
> ignored in "forum non conveniens" proceedings) into their licensing
> agreements, not to mention explicit "term and termination" clauses.
> The GPL, again pretending not to be a creature of contract law, omits
> them, to the great annoyance of people who want to know the rules of
> the game the FSF is playing. But the FSF likes it that way -- FUD is
> their stock in trade.
You've been fairly free with your criticisms of the FSF.
Usually, this has been in the context of an obscure legal claim which
on close analysis seems to be saying something at odds with your
criticisms.
Personally, I find this annoying.
> > And I think we can agree that, at least within the U.S., this definition
> > is a part of copyright law.
> >
> > [On the flip side, if it can be shown in court that there's some criteria under
> > which all programs are free of copyright law, that's probably a good thing
> > for the free software community.]
>
> Have you given more than a moment's thought as to what would come of
> that, in the absence of a new and better software rights law to
> replace it? For starters, bye-bye GPL, and bye-bye all other open
> source licenses -- you publish it, it's public domain. Next, bye-bye
> software industry as we know it; and while you might think you would
> like that, you may think again when your telephone network and your
> electrical grid and your banking system all collapse because half of
> the vendors of their ops software can't make the transition to your
> Brave New World. I'm not going to bother arguing the rest of the way
> to the Death Of Debian (TM). :-)
Do you not classify this as FUD?
If a court finds that there is some context where copyright does not apply
to any programs, the scope of that precedent would certainly be far
narrower than what you've suggested in this paragraph.
--
Raul
Reply to: