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Re: Brief update about software freedom and artificial intelligence

"Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:

>  My proposal to apply the GPLv3 or AGPLv3 - not directly to an object
> but - to a collection of objects using the database protection,
> automatically also solves the problem of a blurry "fair use"
> definition. However, to be more incisive about "fair use", it is
> better to declare explicitly what is not "fair use". Otherwise, we
> risk having to explain this in court. Like in this file header:

> https://github.com/robang74/isar/blob/evo2/meta/recipes-support/expand-on-first-boot/files/expand-last-partition.sh

> # (C) 2022, Roberto A. Foglietta <roberto.foglietta@gmail.com>
> # SPDX-License-Identifier: all rights reserved, but fair use allowed
> # Fair use includes test, learning and marketing but not sales, redistribution
> # leasing, renting or every other commercial/business activities without the
> # consent of the author. Every company or individual allowed to use this
> # code behind these limitations will be listed here below, if any.

I'm afraid this is not how fair use works.  The whole point of fair use is
that the copyright holder has no control over uses that are fair use.
They can grant additional rights with a copyright license, but they cannot
stop legal fair use, no matter what they write in their license and no
matter what their personal opinions are about what would fall into fair

You can see why this must be so if you think about the role of fair use in
copyright law.  Fair use is a carve-out for a whole class of uses to which
society wants to put copyrighted works without requiring any permission
from the copyright holder, and if necessary against their explicit wishes.

Consider quoting small portions of a work while reviewing it, which is one
of the classic areas of fair use in US law.  A copyright holder might like
to only allow friendly reviews to quote their work and prohibit hostile
reviews from quoting their work, or, failing that, prohibit quoting in any
review.  But the point of fair use is that everyone gets to quote their
work and they get no say in the matter.

And, as mentioned earlier, free software relies heavily on this.  Among
the things that are carved out for fair use (and closely related concepts
with roughly the same legal properties, such as limits on what types of
works can be protected by copyright), is the ability to reimplement an
API.  There are also a lot of activities around reverse engineering that
are protected by fair use and related limitations.  The copyright holders
of that software, if allowed to redefine those limits in their licenses,
would use a far more restrictive definition that prohibited free software
competition.  But they can't.

This means that it is largely pointless to try to define fair use in a
copyright license, since the whole point of fair use is that it applies
regardless of the content of the copyright license, even if the copyright
license explicitly prohibits things that are legally fair use, and even in
the case of no copyright license at all.  The belief or definition offered
by the copyright holder for fair use does not matter and should be ignored
entirely for legal purposes.  The only definition that matters is the one
made by the legislature and enforced by the courts.

And yes, it is indeed fuzzy, and it may be beneficial for governemnts to
define it more precisely (assuming they didn't break it in the process).
But licenses like the GPL cannot do this, since those are just statements
by the copyright holder.  The copyright holder *cannot* have any power to
make fair use less fuzzy, since that would defeat the point of fair use.

A similar principle applies to claiming compilation copyright.  Either a
compilation is covered by your copyright, in which case you have all the
normal copyright holder rights over it unless you grant them to others
with an explicit license, or it is not covered, in which case it doesn't
matter what you say about it and everyone else can ignore anything you
say.  So declaring that any compilation including your work is covered by
your preferred license is only relevant if you have a legal copyright over
the compilation.  If you do, then your copyright license matters; if you
don't, everyone else is entitled to ignore your license and your

I am not a lawyer, let alone a copyright lawyer, and have only an amateur
Internet understanding of the nature of compilation copyrights (and they
may well also vary by jurisdiction), but my understanding (possibly
incorrect) of the law in the US is that holding copyright on a member of a
collection does not give you any copyright ownership of the collection as
a whole.  To gain copyright ownership of the collection, you have to
exercise some sort of creative control over the collection itself, such as
by using human creativity to select its membership, choosing some elements
and discarding others.  The person distributing the collection has to
comply with copyright law with respect to the material included that you
hold a copyright on (either satisfying your license or following the rules
of fair use), but if you're not involved in creating the collection, you
don't get any separate rights over the collection itself and cannot assert
a license on it.

There's a bunch of US case law on this around things like phone books
(IIRC, found to not involve enough creativity to have a separate
copyright), recipe collections (copyrightable as a compilation even though
recipes themselves are not individually copyrightable), short story
collections, and so forth.

Russ Allbery (rra@debian.org)              <https://www.eyrie.org/~eagle/>

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