Re: RES: What makes software copyrightable anyway?
On 5/23/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> at the time that I picked Perl and 1-2-3 as examples. But perhaps we
> should regroup and identify the things we agree on (see separate
> thread) and the extent to which other gaps have narrowed.
I'll need to think about that some, but I think there are some obvious points
you missed. (For example, that contract law can and will be used in
resolving ownership issues in copyright cases.)
However, I don't really have your flair for long description. My leanings are
more towards concise statements.
Anyways, I'll see if I can come up with some other points of
agreement. (Many of your statements are statement I agree
with if they're phrased as possibilities rather than in
"always applicable to everything" form -- that is, if they're
rephrased to assert existence rather than universality.)
> > > On 5/21/05, Raul Miller <moth.debian@gmail.com> wrote:
> That's certainly true of Lotus v. Borland. However, if you look at
> the cases from video game space, you will see lots of other
> permutations: game developers using fair means or foul to defeat
> console makers' efforts to impose onerous contract terms (Sega v.
> Accolade and Atari v. Nintendo), emulator developers leveraging the
> availability of games authored for an existing console (Sony v.
> Connectix and Sony v. Bleem), and one publisher distributing add-ons
> for another's game (Micro Star v. FormGen).
One thing these cases share is that the alleged infringers were
not distributing the game software which was being infringed on.
If we draw an analogy between these cases and a dynamic linking
case, a parallel would be cases where the dynamically linked
library was not being distributed by the alleged infringer.
> > The court didn't make a point of that here, but I think it is
> > significant. More generally, this ties back to the concept
> > of "thin" derivative works vs "thick" works. (Which I think
> > is an important concept when talking about the scope of
> > coverage by a copyright.)
>
> I'm unfamiliar with this concept. What makes a derivative work
> "thick" or "thin"?
Consider Transwestern v. Multimedia
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=966371
"The mere fact that a work is copyrighted does not mean that every
element of the work may be protected." Feist , 499 U.S. at 348 .
Determining "whether an infringement of a compilation copyright
has occurred is particularly difficult where less than the entire work
is copied," BellSouth Advertising & Publ'g Corp. v. Donnelley
Information Publ'g, Inc. , 999 F.2d 1436, 1438 (11th Cir. 1993)
(en banc), especially when a competitor can take "the bulk of
the factual material from a preexisting compilation without
infringement." Id. at 1445. The protection available for a
compilation is "thin."
...
"Although a compilation gains copyright protection with only
minimal creativity in the selection and arrangement of facts,
Feist 's statement that the copyright is "thin" has implications
when the holder sues an alleged infringer. "It would seem to
follow analytically that more similarity is required when less
protectible matter is at issue. Thus, if substantial similarity is
the normal measure required to demonstrate infringement,
`supersubstantial' similarity must pertain when dealing with
`thin' works." 4 Melville B. Nimmer & David Nimmer, Nimmer
on Copyright , § 13.03[A] at 13-28 (1997); see also Apple
Computer, Inc. v. Microsoft Corp. , 35 F.3d 1435, 1439 (9th
Cir. 1994) ("When the range of protectible and unauthorized
expression is narrow, the appropriate standard for illicit copying
is virtual identity."), cert. denied , 115 S. Ct. 1176 (1995); Jane
C. Ginsburg, No "Sweat"? Copyright and Other Protection of
Works of Information After Feist v. Rural Telephone , 92 Colum.
L. Rev. 338, 349 (1992) ("`Even if the compilation is deemed
original, what kind of copying will be held to infringe it?' The
answer [after Feist ] appears to be: `Virtually none, short of
extensive verbatim copying.'"). Further, because the
copyrightability of a factual compilation depends upon the
originality in selection, coordination or arrangement of the facts
"as a whole" work, 17 U.S.C. § 101, in an infringement action
the court must compare the allegedly infringing work as a whole
also."
> > The "mere aggregation" clause (on the same storage volume but
> > not a part of the Program or a work based on the Program) seems
> > to me to contain both elements of IP law and elements of technology.
>
> Let's agree that it's a subtle point, and that there's no predicting
> exactly how a district court would go about construing "mere
> aggregation", let alone what conclusion it would reach. It's not even
> clear to me whether an appeals court would go so far as to declare the
> district court's approach to construing that phrase incorrect as a
> matter of law even if it was unimpressed by the result.
Ok.
I suspect that the appeals court would address that phrase if and
perhaps only if the appeal contested an issue where treatment of
that phrase was essential.
> > > As for "functional means uncopyrightable" being insufficient, you will
> > > observe that this decision makes no reference to "methods of
> > > operation", as indeed it would have no occasion to -- the copyrighted
> > > works under discussion are drawings of safety latches. The court
> > > explains how to apply the "doctrine of merger" (of idea and
> > > expression) to decide which parts of the expression are inseparable
> > > from the ideas contained. This paragraph concludes: "In the present
> > > case expert testimony will likely be required to establish what
> > > elements, if any, are necessary to the function of any latch designed
> > > for the upper arm of a collapsible playyard."
> >
> > Certainly. Though it's also worth noting that every case is different,
> > and a case which includes the original work behind the API is probably
> > going to have some differences from a work where the only element in
> > consideration is the API itself.
>
> There will be some differences; and now that you mention it, this
> inspires me to another argument whereby dynamic linking is more likely
> to survive scrutiny than static linking.
I agree, for cases where the dynamically linked library is not being
distributed. Basically, this takes any porential infringement from direct
infringement to contributory infringement, and there's not as much
copyright protection against contributory infringement.
I'm less convinced for cases where the dynamic linked library is
being routinely distributed (for example, in the context of Debian).
Let me put it this way: if someone (A) has distributed their
work under the GPL, they can reasonablly expect to take
the entire source code for a program someone else (B) has
written which incorporates their work (A) and make further
significant creative changes to that work and release it.
If some other party (C) can charge (A) for doing something
outside the law (perhaps breach of contract or copyright
infringement) after having done so, then someone messed up.
Probably that someone was B.
This same principle should hold if some independent party
(D) puts in this kind of creative effort against that same
original work, and where (D) releases the new creative
content under the GPL.
If you are arguing solely about cases where this can't happen,
let me just say that I agree with you at this broad overall
level. If there can be no legal action against people
introducing new creative content in a program which
includes GPLed work, and where the new program as
a whole is released under the GPL, I'm fine with that.
> Note that a court is likely
> to decide that releasing a project under any "open source" license has
> two primary benefits for the copyright holder: 1) access to
> improvements contributed by licensees, and 2) enhanced personal or
> corporate reputation. The Planetary Motion v. Techplosion appeals
> court used exactly this approach to decide that GPL release was "use
> in commerce".
Depending on the license, there could be additional benefits. For
example, the court might decide that there are different benefits with
one license than with another (contrast BSD and GPL here). The GPL
grants protection from [perhaps unfair] competition in a way that the
BSD license does not -- in a way which is roughly analogous
(probably inferior in some ways, for example in terms of trade secret
protection, probably superior in other ways, for example in terms of
copyright protection) to the protection received by "secret source"
release.
Of course, if the copyright holder makes no assertions requiring
such recognition, the court might instead choose to be silent on
this issue.
> The licensor's odds of reaping these benefits when his or her work is
> leveraged by another program are much higher if it is conspicuously an
> independent component available for use from still other programs, and
> if it's easy to apply a bug fix to all uses of that component in the
> system. So unless there is a pretty good technical reason for static
> linking, dynamic linking should be the rule, as part of the evidence
> that the publisher of the combined work is sincere about securing the
> benefits of open source release on the component author's behalf.
> Which is ethically and technically the right answer most of the time
> anyway.
In principle, compilers can generate higher quality code for the
"static linking" case. Here, some of the interface overhead costs
do not need to be paid. In practice, there's still a lot of room for
improvement in this area, and the current industry practices
with respect to distribution of binaries tend to favor (but do not
always favor) dynamic linking.
Anyways, I don't think you should argue that use of static linking
shows anything insincere.
> > This fundamental inconsistency in your argument bothers me.
>
> Perhaps you misunderstand. Both parties acknowledged the existence of
> two contracts, namely the GPL and the "interim agreement". MySQL
> appears to have claimed breach of both contracts. The judge ruled for
> MySQL on breach of the "interim agreement", saying that "Progress
> violated Paragraph 6 of that agreement by using the MySQL trademark
> after the termination and by using an unauthorized combination
> trademark". Her comments on that agreement, and those of the
> commentator you cited, suggest that it was focused exclusively on
> remarketing rights and trademark license.
I'm going to try restating my point. The scope of license for the
trademark agreement focusses purely on the contract signed between
Progress and MySQL. The GPL does not grant trademark rights.
The scope of license for the copyright agreement necessarily
includes not only that contract but the GPL. The GPL does grant
copyright license.
That said, I entirely agree that there could be additional factors --
including factors specific to that case -- which also apply to the
relevance of the GPL in that case. For example, the concept
that Progress could have been estopped from filing infringement
charges against someone releasing new and creative GPLed code
which incorporated some Gemini code.
Also, for the two paragraphs we're discussing, you only have to
look at the order to see that Saris was not interpreting the GPL
at all, but was instead relying on people's affidavits and sworn
statements -- about what had happened and about what would happen.
> The judge then turned to the breach of contract claim with respect to
> the GPL, analyzed it as we have discussed, and denied it. There is no
> indication of an overlap in the scope of the two agreements or of the
> consideration of any copyright license alternate to the GPL. The
> paragraphs I quoted speak exclusively of the GPL in determining what
> license Progress did and didn't have to modify and make copies of
> mysqld. If you think there is a shadow of an indication otherwise in
> the opinion, please point out exactly where it is in the text.
The judge's choice of which issues are relevant to the preliminary
injunction must, I think, be based on the facts of the case.
Additionally, Saris indicated that these findings were based on sworn
statements and affidavits. That's hardly "speaking exclusively of
the GPL". In essence, these findings are relevant to cases which
share the same affidavits and sworn statements.
> "Dual licensing" was not at issue in Progress Software v. MySQL. And
> as for the benefits of having a single developer community, that's an
> argument that any monopolist can make. Outside the sphere of GPL
> enthusiasts, I think you will find that most people (and especially
> most judges) find an ostensibly altruistic monopolist every bit as
> distasteful as a profit-seeking monopolist.
How can someone releasing code under the GPL be in any way
construed as a monopolist in that area?
The GPL demands that if anyone else incorporates the GPLed work
that they not remove that work from the development community, but
that's hardly a monopoly.
Perhaps you instead meant to say "someone who engages in
unfair trade practices" instead of "monopolist"? But even there I
don't see any logical argument.
Thanks,
--
Raul
Reply to: