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:
> > 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.
How about Quagga, since it's in front of us?
> 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.
57.1 kilos of chocolates, of course. :-)
> 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.
Check. Those forms which constitute, even in a small way, "literary
or artistic expression" -- as distinct from ideas, methods of
operation, and other things denied copyright in a given jurisdiction
-- are eligible for copyright protection. If you want a monopoly on
an original technique, you have to look to patent law, and for a
monopoly on a name you need trademark.
[snip]
> > > 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.
I don't think I've accused Eben Moglen of anything close to perjury;
his testimony on material fact in Progress Software v. MySQL seems
unobjectionable. He was not acting in his capacity as an attorney at
law in that dispute, nor indeed in any court proceeding that I have
seen, except perhaps as the attorney of record of the EFF in an amicus
curiae brief at the Supreme Court level in Lotus v. Borland.
I don't know, and am not particularly eager to know, what may be the
technical term or the penalties for knowingly misrepresenting the law
(if he has in fact done so, which I am not qualified to judge) in
private negotiations, in public statements, and in advising his pro
bono clients. If you're personally acquainted with him, you might
ask.
> What's obscure is: in what context would your claims make a
> difference?
The context I really care about is one in which some skilled,
dedicated people actually start treating the corpus of GPL-compatible
open source as a true software commons and refactor it so that it
sucks less. In the process, the lot inescapably winds up GPL v2 --
not LGPL, not GPL-with-fudge-du-jour, not
GPL-or-whatever-the-FSF-comes-up-with-next. I am impatient for that
to happen, I want to be part of it when it happens, and I am unashamed
to say that I want a shot at being paid, and paid well, to do the
parts of it that I am pretty good at.
None of that will happen as long as the GPL is misinterpreted for
public consumption by people who should (in my unqualified opinion)
know better, the FSF's counsel foremost among them. Oh, the FSF will
continue to do deals with individuals (and a few business entities
like Red Hat) who for one reason or another consider it worth their
while to assign their copyright to the FSF; and people within that
circle will have the freedom to refactor if they can get it past the
big cheeses on the individual GNU projects. But they won't be able to
cherry-pick from the rest of the GPL-compatible world, let alone
decide that (say) knitting NPTL into dietlibc is a more promising
place to start than putting glibc through the shredder.
As it stands, FSF politics and industry gaming around copyright
assignment determine what libraries people feel safe using from
applications that they won't or can't GPL from day one. I believe
that is is an essential liberty to have the limits on one's use of
others' creative work set by the law, not by a self-appointed
benevolent dictator. I am in favor of copyleft only insofar as it
works within the law as it exists. And the law as I understand it
(IANAL) does not permit the GPL text, as it stands, to mean what the
FSF wants it to mean.
> > 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.
I'm willing to agree that's what happened.
> 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.
Well, I think it did happen more or less in Lotus v. Borland, without
that misuse of the phrase "public domain", and without particularly
narrow definitions. And under the name "methods of operation", it's a
doctrine which goes back a long way in copyright analysis under common
law. But I still find it hard to apply the phrase "some criteria
under which all programs are free of copyright law" to this situation;
it's merely "some criteria under which a well established doctrine in
copyright law is applied to find some of the expressive content of
software works to be unprotectable".
Cheers,
- Michael
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