Re: RES: What makes software copyrightable anyway?
On 5/23/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/23/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > 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".
>
> Ok. Except, last sentence no verb.
True. Replace that non-sentence with:
By "license", I mean the usage of the word in a copyright law context
-- i. e. "(non-)exclusive copyright license", a term in a contract --
and not any statutory or judicially created defense such as "fair use"
or "doctrine of merger", for which judges almost never use the word
"license".
OK?
> > 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.
>
> To my knowledge all (or perhaps almost all -- I'm not enough of an
> expert to say which) U.S. case law involving copyright claims have
> dealt with contractual issues.
Not at all. Take Lexmark v. Static Control, for instance; there was
not, nor was there ever contemplated, a contract between the parties.
Copyright infringement is a statutory tort and contract law enters in
only if the defendant claims license from the copyright holder. And I
repeat that "fair use" and other statutory and judicially created
defenses are not "license" and are not assessed using contract law.
> Note that I haven't take time to wade back through what we've written
> over the last few weeks, looking for points we now agree on. It's a
> daunting tsk.
Agreed. :-)
> > 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.
>
> I was not referring to distribution of cloned software but distribution
> of the original software. If Connectix was distributing Sony software,
> that issue (along with any associated contracts) would have been
> very significant to the case.
Not really. Not unless Connectix signed some sort of distributor
agreement pledging not to do what it did, or obtained access to trade
secrets that it used to build its emulator; and those would be
separate causes of action under state law. The factual status of
"copying" does not changed based on any contractual relationship
between the parties, only the assessment of whether it constitutes
infringement -- and the only defense affected is a claim of license,
not any of the statutory or judicially created defenses. IANAL,
TINLA.
> > > 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.
>
> The GPL certainly allows distribution when the source code for
> the program as a whole is available under an appropriate license.
> One of the things we're discussing in the context of Quagga is whether
> the source code for the program as a whole is available under
> an appropriate license. [We're also trying to nail down the
> "why or why not" issues.]
I think you missed the thrust of my comment. However you interpret
"work based on the Program", the question of whether or not the same
person distributes both W and P has no bearing on whether W and/or W+P
are works based on P. It has bearing on whether the "normally
distributed with the operating system" exemption applies; but that's
part of the clause defining (as I see it) return consideration, and
certainly has nothing to do with the definition in Section 0.
> > [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.
>
> I'm thinking here that you've not understood my stance on this
> issue -- you're certainly not addressing it.
>
> My stance is that Quagga was written to include these other
> components. Once that's been done, there's certainly no originality
> in selecting these components again.
No, it was written to _use_ those other components through their
published APIs. I do agree with your second sentence, though; which
is why Quagga+libsnmp5+libssl is not a "collective work", it's an
collection that is not copyrightable as a whole. Any claim that
Quagga is a "derivative work" of libsnmp5 or libssl has to rest on the
Quagga source code alone.
> Likewise, the authors have no one to blame but themselves if
> libssl does not have a compatible license. They're in no position
> to take action against anyone else for infringement when they
> use libssl.
>
> However, if Quagga incorporates significant GPLed code from other
> authors -- people who were not a party to this choice -- that
> would be a problem.
Only if the OpenSSL source code is part of the source code of a "work
based on the Program" under the Section 0 definition. (Which it's
not.)
> [dynamic vs. static linking]
>
> > 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 not sure I agree with this logic. People who use the
> unilateral permissions (verbatim copying, with no restrictions)
> are going to be the primary sources of reputation.
Not really. The primary sources of reputation are going to be the
people who look at the code. Eric A. Young's global reputation as a
programmer presumably rests mostly on the quality of the OpenSSL code
and the extent to which other programmers have made use of it, and
Linus Torvalds's reputation as a programmer and a manager of a highly
distributed project rests mostly on the quality and widespread
adoption of the Linux kernel. Reputation as a public figure is a
different story and has little to do with the exchange of value found
in the GPL.
> Also, the GPL does not require that the copyright holder ever
> gain access to the code enhancements -- the GPL only requires
> that the community at large (whoever receives the code
> enhancements) also has access to the sources.
It doesn't technically require that, of course; the GPL can be used,
and is frequently used, for privately distributed materials that no
participant ever feels like putting up for public download. But the
Planetary Motion court recognized the return contribution of patches
(and even bug reports) as part of the value received which made GPL
release of CoolMail "use in commerce"; and that's obviously a big part
of what people get out of GPLing their work.
> > > 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.
>
> I think you're focusing on an important distinction, but I
> think its exact boundaries are a bit more fluid than you
> represent here.
Uncertainty again? In 1991, perhaps; but not in 2005. This issue is
pretty well litigated out, and our side won -- barely. Your side,
mine, and Eben Moglen's: see the amicus curiae brief submitted to the
Supremes in Lotus v. Borland by the League for Programming Freedom (
http://web.archive.org/web/20040217045913/lpf.ai.mit.edu/Copyright/lpf-sc-amicus.html
) Eben Moglen, Counsel of Record for the LPF at the time, presumably
wrote this himself:
<quote>
This absurdity is the root of the problem with petitioner's
contentions. The policy of the copyright system, as all concede, is to
encourage the diffusion of useful knowledge. Petitioner's argument
requires the conclusion that §102(b) effects that encouragement by
requiring each computer program to speak a language different from all
others, making it more difficult for both users and other computer
programs to communicate effectively. "Compatibility," which is one of
the central concerns of interactive software developers, is sacrificed
to the desire of authors to recoup material rewards from the invention
of new languages. This position conforms neither to the words of
§102(b) nor to the Constitution's clear statement of the policy that
enables the legislation. As this Court said in Feist, "the primary
objective of copyright" is the encouragement to build upon information
and ideas. 499 U.S., at 349-50. Petitioner's argument places much
emphasis upon the incentive to authors provided by material rewards.
Pet. Br. at 49. As we show below, concern that the Court of Appeals
interfered with this legitimate interest is unfounded. What petitioner
does not acknowledge, however, is that this interest is not the
central policy of copyright. Extending copyright to cover all
subsequent uses of invented languages contained in a literary work
will profusely reward some authors. But only at the expense of
violating the fundamental axiom--of both our copyright system and our
entire constitutional order--that ideas are free.
</quote>
(Whew. And I thought I wrote long paragraphs.)
> > > 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?
>
> Two cases:
>
> 1) C alleges A violated C's copyright for treating C's product
> (libssl, perhaps) as if it were available under terms
> compatible with the GPL.
In what way is this a violation of anyone's copyright? Did A (the
Quagga authors) create a derivative work of libssl without
authorization from C (the OpenSSL authors)? I think not. Nor do I
think they have done anything to suggest that OpenSSL is offered under
the GPL -- which would in any case be some kind of tort of
misappropriation, or maybe a false claim of agency, rather than breach
of contract. (IANAL, TINLA.)
> 2) C alleges D violated C's copyright (same basic model, just
> a different party charged with the violation).
If A incited D to do so -- say, by distributing the source code for
both A and C's work without clearly delimiting the boundary, and added
a top-level README saying "this whole thing would be much better if it
were refactored, but I'm too lazy to do it" -- then C might be able to
claim contributory infringement against A. Otherwise, none of this is
A's problem.
> > 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.
>
> Let's focus on unfair competition in the context of release of
> source code in human readable form.
Why? Are you not interested in the question of whether it might
constitute unfair competition to, say, claim that GPL programs can't
legally link against OpenSSL, write a mostly API-compatible
replacement (GNU TLS), pressure non-FSF GPL projects to adopt it, and
thereby shove OpenSSL and its authors to the fringe of the open source
world?
> Also, I do not share your truculence against the FSF.
Evidently. :-) But "truculence" is not the word I would use. It
bothers me that the FSF makes claims that strike me as patently false
about how copyright law and copyright licenses work. Like a good
investigator, I ask, cui bono? I look around and I see GCC and GDB as
the core of various commercial development environments, such as Wind
River's Tornado and Apple's XCode, apparently developed with the
active engagement of the FSF while prominent spokespeople for Wind
River and Apple fulminate against the GPL. Hmm, where's the pressure
on them to open up their IDEs?
I see the OSDL -- funded principally by IBM, HP, CA, Intel, and NEC --
handing Eben Moglen four million dollars to create a "Software Freedom
Law Center" apparently dedicated to meeting the legal challenges
facing the FSF, Samba, and other clients of Moglen's (see
http://trends.newsforge.com/article.pl?sid=05/02/11/2216239&tid=147 ).
I see Moglen bragging that he succeeds in strong-arming code out of
"GPL violators" who are afraid to face him in court. And I say, this
is not the rule of law. This smells like a protection racket, no
matter how "bad" the guys on the other side are. I don't have the
facts or the background in law to say whether it's actionable; but I
think it's nasty.
> > 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.
>
> Don't underestimate the moving-target issue. For example, there
> can also be security issues (for example) with dynamic linking.
> With static linking, you can nail down more specifics about the
> behavior of a program than you can with dynamic linking.
You're seriously telling me that somebody who can monkey with
LD_PRELOAD can't do anything he pleases to the user account under
which that process runs? This strikes me as a pretty far-fetched
justification for static linking.
> > 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.
>
> It's not just embedded systems where efficiency is important.
>
> For example, programs which are intended to be used by shell
> scripts have their startup costs multiplied by the number of
> times the program is invoked in a unit of time. Current
> design practices favor dynamic linked libraries for libc
> and so on, but this needn't always be the case.
Hence shell built-ins, busybox, and Darwin-style prelinking. But my
basic point still holds: when static linking (or any other technical
measure) can reasonably be interpreted as part of a scheme to
obfuscate the presence of GPL components inside a system and to
unreasonably obstruct the "freedom to modify" that the GPL tries to
ensure, it strengthens a GPL licensor's claim for breach of contract
through malicious compliance.
> > 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".
>
> I'm not saying the didn't mean "GPL". I'm saying she didn't mean
> "The GPL as a contractual agreement, considered in isolation"
> when she said "GPL".
I'm not that interested in arguing this point any more. Maybe I'll
have more to say if and when I get hold of the full docket. It seems
quite obvious to me that Judge Saris read the GPL substantially as I
have interpreted it, except for some uncertainty as to whether the
case law in her jurisdiction implied that Gemini was a derivative work
of MySQL's copyright material. For all I know, MySQL may have brought
forth evidence that Gemini contained fragments copied from other MySQL
table type implementations. But I'm done responding to a line of
argument that says that she was talking about some license terms other
than the GPL, in a stretch of text that begins with "With respect to
the General Public License ("GPL"), ..." and ends with "... regarding
the use of the MySQL program under the 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?
>
> Her comments about how MySQL had not demonstrated irreparable
> harm.
>
> I agree that I am speculating here, about what reasons she had
> for stating that they had not demonstrated irreparable harm.
> However, I do think it's plausible to view the statements by
> Progress in that case as estoppel against harm to MySQL.
That's not what "estoppel" means. MySQL simply didn't demonstrate
that it would suffer any irreparable harm between the preliminary
injunction hearing and the full trial. The concessions by NuSphere
did contribute to that conclusion. But it's important to note that,
had this been a copyright infringement action, MySQL would have been
entitled to an automatic presumption of irreparable harm, the burden
of proof would have been on Progress to rebut that presumption, and
the record would reflect that pattern of reasoning. Judge Saris did
not take the "copyright-based license" argument seriously, nor, in my
opinion, would any judge.
> > > 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?
>
> Saris said (about the lack of irreparable harm): "... even if MySQL
> has shown a likelihood of success on these points, it has not
> demonstrated that it will suffer any irreparable harm during the
> pendency of the suit, particularly in light of the sworn statement
> that all source code for Gemini has been disclosed and the stipulation,
> given by Progress during the hearing, that the end use license for
> commercial users will be withdrawn."
>
> In other words, it very much looks like Progress promised, in court,
> to release the code under the terms of the GPL. I think that Saris
> was relying on this promise when declaring that irreparable harm
> seemed unlikely.
Relying on it? I think not. Ridiculing the proposition, based on how
much Progress had already conceded to MySQL? Possibly.
> > 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? ***
>
> You asked if there were any indication that the paragraphs did not
> speak exclusively of the GPL. I'm saying that the judge appears
> to have been relying on Progress to keep their promise and to fully
> repair the breach.
>
> That said, under contract law, the contract in breach must include
> all agreements between the two parties -- thus the contract in
> breach could not have been the GPL alone. The GPL the part of the
> contract which allows the breach to be repaired with the
> proper release of source code.
The FSF persists in the contention that breach of the GPL cannot be
repaired except by proclamation from the licensors, and considers it
essential to the extra-judicial enforcement of GPL terms; Eben
Moglen's affidavit is quite eloquent on the topic. Judge Saris rather
pointedly ignored this contention, probably not least because it
doesn't seem to have been offered by MySQL's counsel. And as for the
claim that the circumstances, including the existence of a separate
covenant regarding trademark license and remarketing rights, could
fundamentally alter the judge's approach to construing the GPL, I
reject it based on the text of the opinion as discussed ad nauseam.
> > 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.
>
> You're using prejudicial language here. I'm inclined to ignore
> that aspect of the argument -- I'll just focus on one issue:
>
> This does not reflect any current state of affairs I'm aware of.
>
> In any event, when someone has a monopoly, they have to follow
> special rules. Those rules do not apply to people who do not
> hold monopolies.
That's a different use of "monopoly", relevant to antitrust claims.
"Monopoly" is a perfectly good word to describe the Nintendo and
Lexmark states of affairs, in which a vendor claims sole authority to
authorize the creation of compatible accessory products, and is used
several times in the latter decision. For instance, in Judge
Feikens's partial concurrence in that opinion: "We agree that the
Digital Millennium Copyright Act (DMCA) was not intended by Congress
to be used to create a monopoly in the secondary markets for parts or
components of products that consumers have already purchased."
On the topic of the Lexmark decision, I might add that Judge Feikens's
grounds for partial dissent in that opinion are extraordinarily well
argued and illustrate a number of splits among the US circuits in the
details of how copyright infringement claims with respect to computer
programs are to be analyzed. He also goes into the heightened
significance of those splits in situations where the DMCA may apply.
Resolving those differences is the job of the Supreme Court, and we
may hope that in the next few years the Supremes have occasion to
speak ex cathedra on these issues.
> Let's agree that discussion of monopoly is not relevant to any
> current GPL issues.
Let's agree instead that we are talking about monopoly in the sense of
"monopoly in the secondary markets for parts or components", as
frequently used in Clayton Act, Robinson-Patman Act, and state unfair
competition claims, rather than in the sense of "market dominance in a
product sector", as used in Sherman Act and other antitrust types of
claim.
> > 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.
>
> I think you're ignoring what Saris wrote if you believe that.
>
> As I understand it, Progress did release Gemini under GPL
> compatible terms. Not all at once, but Saris indicated
> that a part of the compliance would be future.
>
> Additionally, the contract in breach was never the GPL alone,
> so it's improper to construe that the reasoning expressed in
> that case represents a treatment of breach of the GPL.
>
> Try it this way: If we have a broken contract between us
> and I offer you a new contract and you indicate agreement
> to that contract and promise in court that you will comply
> with all the terms of that contract, would the court treat
> you as being in breach of this new contract even though
> you don't comply with all of its terms immediately? Or
> would the court instead focus on issues which are outside
> the new contract but were inside the old contract?
>
> As far as I know, Progress is now in compliance with all
> the terms of their contract with MySQL. To my knowledge,
> this is exactly what they promised in court.
>
> I guess I don't understand what problem you have with this.
With the exception of the implication that the GPL came after the
interim agreement and supplanted some of its terms, I don't have a
problem with it. As I understand it, the copyright license on which
Progress relied all along was the GPL; and Eben Moglen's affidavit
appears to support that understanding. He states in paragraph 36:
"The mysqld program as distributed was covered by the GPL."
Note, however, that this time you have stated the situation entirely
in terms of breach of contract, and that's why I don't have a problem
with it. Does this mean we can add this to the "things we agree on
about the GPL"?
Cheers,
- Michael
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