Re: RES: What makes software copyrightable anyway?
On 5/21/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/21/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > 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.
Not in any copyright sense whatsoever. And what, every Perl script is
"based on" Perl? Every Lotus 1-2-3 macro is "based on" Lotus? Come
back to Earth, please.
> > 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.]
Idea / expression dichotomy. Deal with it.
> > 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.
This isn't a point of fact, it's a point of law, and a very, very well
settled one. I am done debating with you on this topic, I think.
> 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".
If you are saying that you want to ignore the law, you are (I hope) on
the wrong forum.
> > > 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.
Did you miss the _trademark_ license agreement, unrelated in any way
to the license (the GPL) under which Progress claimed rights to copy,
modify, and distribute MySQL's code?
> > 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 are trying to say that some other license of copyright was
involved in any meaningful way, or that the judge did not interpret
the GPL in the GPL section of her opinion but some amalgam of the GPL
and some alternate copyright license, then you are in the astrology
zone of arrant nonsense based on the facts at hand.
> > 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.
I repeat -- is it remotely plausible that any judge would give
"copyright-based license" the time of day, instead of treating the GPL
as a creature of contract law (or the equivalent in systems other than
common law)? It's about time you stopped bullshitting and took a
stand here.
- Michael
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