Re: RES: What makes software copyrightable anyway?
On 5/21/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > 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.)
>
> Special copyright protection on what basis?
The potential answers to that question are a detail. The would depend
very heavily on the context of a specific case.
If you want to limit the scope of this part of this discussion to
some limited case, I'll try to guess at what a court would think
is important.
Of course, I know you're waiting with baited breath and a
box of chocolates to hear my wonderful prognostications on
this subject. Either that, or you want to bludgeon me with a
57.1 kilogram object. I'm not really clear on which of these
alternatives best captures this situation.
Anyways... and I hope that that attempt at humor relieves stress
rather than adds to it ... anyways, whatever it is that makes
a work be treated as original has to have some significant
element of originality to it. Otherwise, it's a copy of something
which was created by someone else.
And I think it's safe to acknowledge that originality can take
many forms.
> > In a truly trivial breach (de minimus) court isn't going to care at
> > all.
>
> That's not what "de minimis" means. "De minimis" means that the
> amount of copied material is so small that it simply isn't "copying"
> -- let alone infringement -- for legal purposes.
Quite right: de minimus can also apply to allegations of
infringement.
> > In some breaches, the court can declare that the infringement
> > was fair use (or find some other reason that the infringement
> > was legal).
>
> Are you totally clueless about the difference between "breach of
> contract" and "copyright infringement", or are you deliberately
> bullshitting? "Fair use" is a doctrine applied solely in evaluating
> copyright infringement claims and has nothing whatsoever to do with
> breach of contract.
I was referring to hypothetical infringement which might occur
with some license termination in the context of contract breach.
> > 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 .
>
> No, the court could not easily declare anything of the kind. The
> remedies available for copyright infringement are set by 17 USC
> chapter 5.
I thought you were interested in discussing the GPL using
contract law as a basis? In that case, it's entirely possible
that the court could rule on the basis of estoppel or some
other such legal mechanism.
> The only means by which a court could encourage -- not
> compel -- the creation of a license that had not already been granted
> would be to issue a conditional injunction of the style rendered in
> Sun v. Microsoft. In the scenario you offer, that's "distribute with
> source code, under GPL terms, or don't distribute at all". It might
> be possible to compel specific performance in an action for breach of
> contract or under some state tort law such as "unfair competition",
> but not AFAICT under copyright law.
I was imagining, here, a case where the conflicting code would be
licensed under some terms which were nearly GPL compatible,
and where the licensor of that conflicting code made an issue out
of it.
> > 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.
>
> You're standing the law on its head. Termination of a copyright
> license for breach, per Rano and op. cit., can only be done if the
> breach is "of so material and substantial a nature
> that [it] affect[s] the very essence of the contract and serve[s] to
> defeat the object of the parties". It is inconceivable to me that
> I_WANT_OPENSSL could meet this standard.
For that to fit, in this context, you'd have to have Quagga incorporating
some significant work of some other GPLed project and you'd have
to have some legal trouble from the (rather silly, in my opinion) trademark
promoting requirements in the libssl contract. Further, the copyright
holders on libssl would have to be a party in this legal action.
Anyways, I think we can agree that if GPL license termination kicks
in we're not talking about 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.
>
> There's nothing obscure about this claim, my friend. And I doubt "FUD
> is the FSF's stock in trade" is half as annoying to you as your
> periodic snatching at irrelevancies is to me.
Ok, in the context of your assertions about Progress v. MySQL you've
nearly accused Moglen of perjury. I'll agree that that's not obscure.
What's obscure is: in what context would your claims make a
difference?
> > > > 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?
>
> What do you think would happen if software copyright vanished
> overnight? I classify this as "reductio ad absurdum".
I'm gong to chalk this one up as you completely misunderstanding
what I was saying.
> > 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.
>
> Did I misread this:
>
> > > > [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.]
>
> I can't find any way to read that other than a fantasy of a
> software-copyright-free world, but perhaps you had something else in
> mind.
An example of "some criteria under which all programs are free of copyright
law" would be:
<hypothetical>If courts had determined that any computer language which
was offered and sold to a large audience had the elements of that
language automatically placed in the public domain.</hypothetical>
Naturally, I don't think this is going to happen. But, if it did happen, it
would probably be accompanied by some fairly narrow definition of
what would constitute a computer language, and of what would constitute
being offered to a large audience as well as being sold to a large audience.
Courts tend to be fairly conservative about rocking the status quo.
--
Raul
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