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:
> > On 5/21/05, Raul Miller <moth.debian@gmail.com> wrote:
> > > 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.
>
> It's very clear that "based on" is the essence of what copyright
> protects in the case of derivative works, and providing
> supposed counter examples which haven't been heard in
> court doesn't make that go away.
Lotus, actually, has been heard in court. Remember Lotus v. Borland?
The macro language in 1-2-3 was held to be uncopyrightable, as was the
menu interface with which it was fairly closely interlocked. (Held at
appellate level, affirmed by an evenly divided Court, so no opinion at
Supreme Court level.) A large fraction of the discussion in the
Supreme Court oral argument was about users' existing spreadsheets
that used the 1-2-3 macro language -- otherwise known as its external
API -- and how Lotus ought not to permitted to leverage the copyright
monopoly in order to lock those users into its implementation of that
API, whether or not they originated it. If it were correct to call
all of those spreadsheets "derivative works" of 1-2-3, then they
certainly would have that leverage.
You can't just pull some common sense usage of "based on" out of a hat
and say that's what consitutes a derivative work. The vast
preponderance of case law is against you here, based on the cases I've
read (many of which I've cited). Have you any counterexamples to
offer in which a program was held to be a derivative work of the
language in which it was written, an API which it called, or an engine
on which it ran -- except via a "mise en scene" doctrine with regard
to a story-type work?
> > > > 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.
>
> And I'm not saying that the ideas are copyrighted.
If the ideas are not copyrighted, and API usage and linkage do not
produce a derivative work (as I believe there is no question they do
not based on the cited case law), then by what other theory are they
derived? Copyright is not patent, and use by reference is not
plagiarism of expression.
[snip bits of dead horse]
> > If you are saying that you want to ignore the law, you are (I hope) on
> > the wrong forum.
>
> I think there's a lot of ground between "getting bogged down in
> the little details" and "ignoring the law".
>
> (Except, in a sense, "getting bogged down in the little details" can
> be a way of ignoring the law (when the big important concepts
> get neglected).)
I am not feeling particularly bogged down, myself. The truth is in
the details, along with the devil; and the law, especially in
common-law countries, is composed almost entirely of details. In this
discussion, the differences between breach of contract and copyright
infringement, between "scope of license" and the complete agreement,
and especially between derivative and collective works matter a great
deal. They are, in fact, the "big important concepts".
> > 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?
>
> I think you'll agree that the crucial question here is: what license was
> granted in the agreements between Progress and MySQL?
I hope you'll read Progress Software v. MySQL again and agree that the
crucial fact is that the claims with respect to the trademark license
and with respect to the GPL were considered quite separately, and
injunction granted on the former and denied on the latter. No
consideration of any feature of the NuSphere/MySQL relationship, other
than the GPL and the handling of source code and binaries, entered
into the two paragraphs in which the GPL claims were considered and
rejected as grounds for injunction.
> > > 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.
>
> http://www.linuxjournal.com/node/6025/print
Did you think this supported some argument you were making?
<quote>
This author obtained from court pleadings the original international
agreement by which a publicly traded, long-established business
software company based in Massachusetts obtained remarketing rights
from a young, offshore, small developer in Finland. Ugly surprise:
these two companies agreed to do a big-impact, large-dollar deal on a
mere nine-paragraph contract. The agreement ran all of 1.25 pages.
Progress Software agreed to pay roughly $300,000 US to a dynamic
foreign company in a new, unfamiliar (to Progress) industry segment,
on the equivalent of the proverbial envelope. MySQL AB, the Finnish
company, blessed the Massachusetts vendor's procurement of its key
product by a short statement indicating some future contract would be
utilized ``later'', triggering ``a total of up to $2.5 million''. The
resulting fight shows precisely why experienced business people
(including lawyers) frown at the optimistic idea of ``let's just trust
each other and figure out later the deal and the details.''
...
OSS loyalists hoping for court affirmation of the GNU model may be
frustrated: both sides of the suit have already raised legal arguments
unrelated to the OSS issue. For example, MySQL AB has already obtained
(on February 28) a partial injunction against Progress and its young
OSS subsidiary NuSphere, but on trademark law grounds, not enforcement
of the GPL. The federal judge found the GPL issue too uncertain to
adjudicate in this litigation's early, summary phase.
</quote>
It seems clear to me from the judge's opinion that the "remarketing
rights" your commentator mentions were focused exclusively on
trademark issues, and the copyright license necessary to make copies
of the software for distribution was offered solely through the GPL.
(Note, by the way, that both parties had issued press releases at the
time the remarketing agreement was originally inked, in which they
spoke of Progress / Nusphere as having "funded" the relicensing of
MySQL under the GPL, in lieu of its previous licensing terms.) We'll
see for certain once someone gets hold of the full docket, if that's
still possible.
Cheers,
- Michael
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