Re: RES: What makes software copyrightable anyway?
If anyone else is still reading, I have a question for you, marked
with *** below.
On 5/23/05, Raul Miller <moth.debian@gmail.com> wrote:
> 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.)
As long as you modify "copyright cases" to "claims of license under
copyright", I'm good with that. Contract law is not used to resolve
any issue other than the validity and scope of a claimed license.
License as in "non-exclusive copyright license", a term in a contract,
not any statutory or judicially created defense such as "fair use" or
"doctrine of merger".
> 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.)
OK. But let's both be careful about mistaking, say, "some copyright
licenses are terms in contracts" as nearly agreement with "all
copyright licenses are terms in contracts"; the former (in law, not in
math) implicitly suggests that some copyright licenses are not terms
in contracts, which is diametrically opposed to the latter.
> > 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.
I don't believe that makes any difference to the logic in these cases.
There would be no additional cause of action in, say, Sony v.
Connectix if Connectix had legitimately purchased Sony games for
resale and bundled them with its PlayStation emulator. Not as long as
it did not claim "collective work" copyright on the bundle (compare
Palladium Music v. EatSleepMusic) or violate trademark law by implying
that the emulator was a Sony-approved product.
> 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.
That simply doesn't make a bit of difference to whether a program is a
derivative work of the library to which it's linked -- and all of the
cases cited above are copyright (and/or trademark) infringement cases,
not breach of contract. Now, if the library's license agreement
contained a prohibition on distributing the two things together, then
the court might have to consider whether that prohibition is a
legitimate term for a contract to contain. But in the case of the
GPL, I do not believe (IANAL) that it contains such a prohibition when
construed according to the applicable principles of common law
(irrespective of the details of the given jurisdiction's
implementation of contract law). Participants from civil law
countries appear to reach similar conclusions.
[snip citations anchored in Feist]
You do understand that Transwestern v. Multimedia, BellSouth v.
Donnelley, and Feist v. Rural Telephone are discussing the "thin"
copyright on "compilations" of facts (such as telephone directories)?
Copyright on a "collective work" (a compilation whose components are
themselves copyrightable works) is in some ways stronger, but it still
has to meet a non-zero threshold of "creative expression in selection
and arrangement", and the act of combining the compiled binaries of
Quagga, libsnmp5, and libssl doesn't cut it. The modifications to
Quagga to support publishing routing tables via Net-SNMP certainly do;
but those are part of the creative expression in the source code of
Quagga, and do not add weight to the "selection and arrangement".
They also don't make Quagga a derivative work of Net-SNMP or OpenSSL.
> > 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.
Agreed entirely.
> > 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.
That's kinda sorta true, but that's not where my argument was going.
I have previously made the case that combining them at run-time can't
by itself create a cause of action for direct infringement (under 17
USC 117), and that where there is no direct infringement there is no
contributory infringement. But if it's clear that the distributed
item is intended to be combined at run-time with the work that it is
alleged to infringe, and there is a valid basis (such as "mise en
scene") on which the run-time use is direct infringement, then US
courts have no difficulty ordering penalties for contributory
infringement.
My argument was going somewhere completely different. The GPL is a
true offer of bilateral contract because the licensor receives
valuable return consideration from the licensee: enhanced reputation
and access to the licensee's code enhancements. Squirreling away a
GPL library (or the Linux kernel or any other kind of program) inside
a box marked "No User-Serviceable Parts Inside", and being silent
about (or worse, obfuscating) its presence, may be "malicious
compliance" even if the letter of the GPL obligations are met.
"Malicious compliance" that uses loopholes in the contract language to
deprive the other party of substantially all benefit of the exchange
is often (IANAL) grounds for contract termination. Once a licensor
swallows the bitter pill of the inescapable bilateral-contract-ness of
the GPL, its medicine starts to go to work, and she may find it much
easier to obtain redress for genuine abuses. She probably does,
however, have to give up the pretense that the GPL encumbers
independently developed works that link against GPL works; a court
would probably see that as an attempt to deprive the licensee of
substantially all benefit of the exchange.
> 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.
It depends how it is "incorporated". As I read it under US law
(IANAL), the text of the GPL does strike that bargain with respect to
"derivative works", but not with respect to works that use the GPL
work through its published interface. The sources of law that I and
others have cited (even, as I read them, the cases you've cited)
appear to agree that copyright cannot be used to claim rights on a
program that merely uses yours.
> 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.
I am not succeeding in following any of this. Who is alleging what
against whom?
> 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.
Perhaps you're thinking of a Galoob v. Nintendo type situation in
which the game publisher links against a GPL library, the "cheat code"
gadget is a patch to that library (offered under GPL), and the game
maker goes after someone for creating a "derivative work" under a
"mise en scene" theory. I don't know whether a court would rule that
accepting the GPL, and publishing games that use a GPL library, estops
the game maker from objecting to the effects of anything the end user
might substitute for that GPL component. I suspect that, depending on
the facts, you could still get any outcome from Galoob to Micro Star.
> > 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.
Nothing about the GPL grants protection from competition. It places
return conditions on the distribution of derivative works that the BSD
license doesn't. Trying to leverage the copyright monopoly for
anti-competitive purposes puts you right in the boat with Lexmark.
And that's frankly the suspicion I harbor about the FSF's behavior
surrounding GCC, and if Mr. Wallace doesn't succeed in busting them
for it, I wouldn't be surprised if someone else does.
> Of course, if the copyright holder makes no assertions requiring
> such recognition, the court might instead choose to be silent on
> this issue.
It'll be interesting to see what the Indiana court says.
> > 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.
Depends whether you care more about dynamic linking overhead or memory
savings from libraries shared between processes running different
programs. I know enough about compiler and linker design to say that,
in almost any case where static linking is a significant performance
win (as opposed to a workaround for moving-target-API problems, as in
libbfd), judicious inlining is a bigger win. Of course you only want
to inline things that you're pretty sure are bug-free, if you care
about swapping the rest of the library without a recompile.
> Anyways, I don't think you should argue that use of static linking
> shows anything insincere.
Static linking alone doesn't demonstrate insincerity. Static linking
without a good reason may, since it's a lot scarier to an end user to
relink than it is to drop in a replacement shared library.
Performance-based justifications for static linking tend to come up
mostly on embedded systems anyway, where it is the vendors' habit to
obstruct piecemeal upgrades by end users. If you want to change that
habit, I think you're going to have more success evangelizing "freedom
to modify (the GPL bits)" without the "we 0wn your applications"
baggage.
> > 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.
I think you're abusing the phrase "scope of license" here. I repeat,
please show me any indication that the judge didn't mean "GPL" when
she said "GPL".
> 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.
This strikes me as far-fetched. Is there any part of the record that
supports this speculation?
> 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.
I see no evidence to support this assertion. Are you seriously
suggesting that she didn't read the GPL in the course of adjudicating
the GPL claims?
> > 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.
You seem to be promoting the idea that there is some uncertainty about
whether Judge Saris construed the terms of the GPL under contract law
in the course of deciding whether or not MySQL's claim was likely to
succeed on the merits. I do not believe that there is any such
uncertainty. *** Does anyone else believe that Judge Saris didn't
construe the GPL to reach the conclusions cited from her opinion? ***
> > "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.
Let me draw the parallels for you. Nintendo sought to monopolize the
supply of game cartridges (sold at high margin) compatible with their
consoles (sold at low or negative margin). Lexmark sought to
monopolize the supply of toner cartridges (sold at high margin)
compatible with their printers (sold at low or negative margin). It
is imaginable that some GPL licensors may seek to monopolize the
supply of end-user applications and feature add-ons compatible with
their (GPL) core components -- either for financial or ideological
benefit. Call me a cynic, but I've been around this industry for a
while and in my uninformed and non-lawyer opinion I've seen patterns
of behavior that quack very much like that duck.
The technical-legal maneuverings of Nintendo, Lexmark, and the FSF
have all been quite clever. Nintendo's mysterious 10NES program,
Lexmark's cryptographic checksum on the TLP, and the FSF's
misrepresentations (in my view) about the GPL have generally been very
successful obstacles to competition on the profitable side of the
equation. When Atari succeeded in circumventing 10NES, Nintendo
defeated them in court, because Atari infringed copyright in a way
that they didn't strictly have to for compatibility's sake. (The
court was probably also biased towards this conclusion by Atari's
skulduggery in acquiring 10NES source code.) When Static Control
Components gambled on copying the TLP, Lexmark failed (on appeal) in
their campaign to suppress their competition; SCC succeeded in showing
in court that Lexmark was abusing the copyright monopoly by turning
the literal bytes of the TLP into a lock-out code.
That leaves the GPL. The FSF's quasi-legal strategy with respect to
the GPL remains partially untested. Progress Software v. MySQL
demonstrated, as I see it (IANAL), that the "copyright-based license"
contention holds no water; but it didn't go into the FSF's business
practices at all. And it's worth noting that, so far, the FSF seems
to be winning in the court of public opinion (or at least pundit
opinion), not least because SCO and Microsoft make such compelling bad
guys.
If the facts surrounding the conduct of the FSF (and, presumably, Red
Hat and Wind River and whoever else is in on the game) support a claim
under the Clayton Act, the Robinson-Patman Act, RICO, or state unfair
competition laws -- which I have no way of knowing -- and Mr. Wallace
has the skill and the resources to find where the bodies are buried,
public opinion may change. If he doesn't, how long before someone
with more skill and resources tries -- especially with targets like
the OSDL sponsors close behind? Far better for all of us if the FSF
does a little soul-searching and comes clean, abandoning the claim
that the GPL is the "mutual suicide pact" that is many sofware
publishers' summary of the FSF FAQ.
> 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.
Try the above on for size.
Cheers,
- Michael
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