Re: Viral licenses (was: wxWindows library...)
John Cowan wrote: [...] You can't compare property in physical things directly to its copyright. If you replace the car by a detailed description of it (#1), and incorporate into that a detailed description of the gas pedal (#2) that has already been written, then #1 is indeed a derivative work of #2. I don't think so. Such aggregated work (technical specification) is a compilation, not a derivative work, AFAIK. Now, going back to software, http://www.digital-law-online.info/lpdi1.0/treatise27.html (see VI.D.4. Derivative Works and Compilations) Well, Lee Hollaar (see treatise2.html) also wrote this: quote source=ecfp.cadc.uscourts.gov/MS-Docs/1636/0.pdf Substituting an alternative module for one supplied by Microsoft may not violate copyright law, and certainly not because of any integrity of the work argument. The United States recognizes moral rights of attribution and integrity only for works of visual art in limited editions of 200 or fewer copies. (See 17 U.S.C. 106A and the definition of work of visual art in 17 U.S.C. 101.) A bookstore can replace the last chapter of a mystery novel without infringing its copyright, as long as they are not reprinting the other chapters but are simply removing the last chapter and replacing it with an alternative one, but must not pass the book off as the original. Having a copyright in a work does not give that copyright owner unlimited freedom in the terms he can impose. /quote To me, the GPL does allow reprinting (that's section 1). So any alternative stuff can be added and distributed together with the original stuff. And, of course, the alternative added stuff doesn't need to be under the GPL as long as the added stuff is NOT a derivative work of the GPL'd thing (read: was prepared without copying any protected elements from the GPL'd thing [clean room] or simply doesn't contain them at all being a completely different [new] functional part of a whole work). www-106.ibm.com/developerworks/opensource/library/os-cplfaq.html quote Q: When I incorporate a portion of a Program licensed under the CPL into my own proprietary product distributed in object code form, can I use a single license for the full product, in other words, covering the portion of the Program plus my own code? A: Yes. The object code for the product may be distributed under a single license as long as it references the CPL portion and complies, for that portion, with the terms of the CPL. [...] Q: If I write a module to add to a Program licensed under the CPL and distribute the object code of the module along with the rest of the Program, must I make the source code to my module available in accordance with the terms of the CPL? A: No, as long as the module is not a derivative work of the Program. /quote regards, alexander. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Clarification of GPL
Gream, Matthew wrote: This is the case in the UK under the CDPA 1988, for both cases of copyright assignment (s.90) and exclusive licenses (s.92): they must be in writing and signed. Whether any interpretation, in light of other legal instruments or case law, recognises digital signatures as having equivalent effect to this is question better answered elsewhere. There is a Directive (99/93/EG) which mandates that EC member states recognize electronic signatures as equivalent to paper signatures. I am not sure whether it also states that digital files are equivalent to in writing. It would seem to be the case that submitting a patch constitutes granting a perpetual non-exclusive implied license for the reasonable purposes of incorporation of the the patch into the project under the terms of the license of the project - the patch being used to modify the work (the I think it is debatable in many cases whether a patch by itself is sufficiently original to qualify for copyright. But in any case you'd be best off insisting on an explicit copyright and license statement with the patch. project) and create a derived work (the new project). Interestingly the individual portions (i.e. files) of the project could lapse from copyright (and, therefore, GPL protection), even while copyright subsists in the entire collection as a whole, unless the project could be claimed to be a database, and subject to a relatively perpetual protection under a sui generis database right (which exists in the EU). [1] That's Directive 96/9/EC. I do not think the sui generis database protection can be applied to computer programs. There has to be qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents (art. 7(1)). European caselaw seems to focus on the principle that the investment has to be primarily aimed at these activities. If the database is a spin-off, a byproduct of something else, it's not protected. http://www.ivir.nl/publications/hugenholtz/fordham2001.html Note that this right is not available for producers of databases who live outside the EC member states (art. 11(2)). Arnoud -- Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Clarification of GPL
Each source file is tagged with a header naming him as copyright followed by a GPL header. For anybody to submit a patch to the original distribution, you agree that he gets copyright of it. In most countries, an assignment of copyright has to be in writing and on paper. So an e-mail may well be insufficient. This is the case in the UK under the CDPA 1988, for both cases of copyright assignment (s.90) and exclusive licenses (s.92): they must be in writing and signed. Whether any interpretation, in light of other legal instruments or case law, recognises digital signatures as having equivalent effect to this is question better answered elsewhere. It would seem to be the case that submitting a patch constitutes granting a perpetual non-exclusive implied license for the reasonable purposes of incorporation of the the patch into the project under the terms of the license of the project - the patch being used to modify the work (the project) and create a derived work (the new project). Interestingly the individual portions (i.e. files) of the project could lapse from copyright (and, therefore, GPL protection), even while copyright subsists in the entire collection as a whole, unless the project could be claimed to be a database, and subject to a relatively perpetual protection under a sui generis database right (which exists in the EU). [1] If fact, we could probably split chips further: you in fact may not be modifying and creating the derivative work (i.e. the project) yourself, but perhaps are are giving the patch to a person who will exercise the acts that give real effect to the implied license - this may bring in other complications such as liability of individual who applies the patch, and additional equitable issues between yourself and that individual. Under UK copyright law, moral rights are not applicable to computer programs, nor are there any allowances for revocation (I believe that there are under French droit d'auteur) apart from those that would be related to the terms of the license that are contractual, equitable and estoppel in nature. It would seem not possible to revoke that original implied license unless it could be argued that the terms of it were breached (e.g. in the chain of the appplication of the patch, or changing overall project license, etc). Please correct me if I am wrong - I'm an IPR student and may not yet have the whole picture worked out. Matthew [1] Not a real issue given the duration of copyright and the relative youth of any software, however I find this recent issue with Roland MT-32 and reverse engineering (cf. http://www.artworxinn.com/alex/history.htm) interesting as it suggests that some classes of works that failed to achieve restoration may now be in the public domain in the united states. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Viral licenses (was: wxWindows library...)
John Cowan wrote: [...] computer scientist (HINAL) http://www.digital-law-online.com/lpdi1.0/treatise2.html [...] Added material is not itself a derivative work of the GPL'd thing, obviously. A binary, however, which combines them into a single object, probably is. I don't think so. I think that source code and the object code are just different forms of the same copyrighted work. I think that neither static nor dynamic linking constitutes creation of derivative work. Finally, I personally think that all those FSF myths (incompatible licenses, etc.) are laughable and won't stand in court. regards, alexander. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Clarification of GPL
Gream, Matthew wrote: That's Directive 96/9/EC. I do not think the sui generis database protection can be applied to computer programs. There has to be qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents (art. 7(1)). European caselaw seems to focus on the principle that the investment has to be primarily aimed at these activities. If the database is a spin-off, a byproduct of something else, it's not protected. http://www.ivir.nl/publications/hugenholtz/fordham2001.html I'm not sure either that it could be applied to computer programs as such, but for example a large scale continually evolving project such as an operating system residing in a CVS repository seems to fall in the scope of the protection. Was there a substantial investment in creating the CVS repository of code? It seems to me the investment was in writing the code, not in putting the code in the repository. That seems to disqualify the repository from database protection under the spin-off doctrine. Here in the Netherlands, the national association of realtors put the information on houses for sale online in a web database. Previously every realtor had his own private little database. This web database was held to be a spin-off without substantial investment, since the investments made by the realtors were primarily aimed at their own databases, not the web edition. Anyway, I agree that these rights are not fully fleshed out, I was trying to make a point about how the original copyright in a patch could expire, but the patch may still be protected from extraction of the overall work. That may indeed be the case, although I think it may be difficult to encounter such a situation in practice. Arnoud -- Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Clarification of GPL
Mahesh, The nearest analogy from literature I can think of at the moment is X being a grammar text book and Y my essay, which conforms to grammar in that text book. Is my essay a derivative of the grammar book? Example is too far-fetched. What if Y were a separate book with extensive treatment of the exercises presented in X ?? Y could not exist without X - the prior publication. Yet copyright AFAIK treats it as an independent work. Certainly as long is it is being distributed as a separate volume. Abe Kornelis. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Clarification of GPL
Abe Kornelis scripsit: The nearest analogy from literature I can think of at the moment is X being a grammar text book and Y my essay, which conforms to grammar in that text book. Is my essay a derivative of the grammar book? Example is too far-fetched. What if Y were a separate book with extensive treatment of the exercises presented in X ?? Indeed, such a book exists: the _C Answer Book_, by Tondo and Gimpel, provides answers to the exercises in _The C Programming Language_, by Kernighan and Richie. -- John Cowan [EMAIL PROTECTED] www.reutershealth.com www.ccil.org/~cowan The exception proves the rule. Dimbulbs think: Your counterexample proves my theory. Latin students think 'Probat' means 'tests': the exception puts the rule to the proof. But legal historians know it means Evidence for an exception is evidence of the existence of a rule in cases not excepted from. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Clarification of GPL
On Sun, Dec 14, 2003 at 10:24:55AM +0100, Arnoud Engelfriet wrote: That's a realistic worry, although if all those people license their code under GPL, they cannot revoke that license and stop distribution of the program. A bigger issue is if in the future the project wants to change the license. Then they have to ask everyone permission. The problem here is exactly that. Assignment is a double edged sword. Assignment makes it easier for one individual to litigate against people who violate the license (which means violating the copyright). But it also permits the assignee to change the license for future releases in any manner which they please. Including proprietary licenses that perhaps the majority of contributors may not be inclined to agree to. This is true because the GPL does not apply to the owner of a copyrighted work as long as they own the entire work. If they don't own the entire work it becomes rather complex. They'd more than likely have to receive permissions from all the people who do own the rights. They might be able to remove the parts that they didn't own. But even this wouldn't be easy, as parts of the code they have written may be considered derivative works of the code they don't own. Unfortunately, what is and is not a derivative work is a pretty fuzzy line. GNU projects require assignment of copyright to the FSF. In this case it is very unlikely (arguably impossible) that code would be relicensed in any manner that is inconsistent with the GPL. Though some people might even argue this point. However, in this particular case the assignee is not the FSF but the primary author of the application. There is no way to be sure of the author's future motives as you can with the FSF. He may be hired by a commercial software firm who pays him a large sum of money to turn the application closed source and work on it for them. But even if you assume or trust the author to only have good motives you can not assume that his successors in interest will be. Copyrights live on past death and as a result pass to the authors heirs. Those heirs could do anything they want with the software. Including selling it. While it is true that the license provided by the GPL can not be revoked unless you do not comply with the terms, i.e. the released code would be available to the world to use forever, including continuing to make new derivatives licensed under the GPL. It is also true that most people using the GPL do so because the wish to disallow the commercial use of their code without the reciprocal release of source code. Assignment in this case subverts this wish and expectation. The author in this case could will the software to the FSF upon their death. That would certainly avoid the issue of successors (presuming the will is properly done). However, if they're going to will it to the FSF why not just assign all the code to them now? Or possibly some other organization if they don't like the politics of the FSF. I personally don't think assignment is necessary. I find find the motives of people requiring assignment to them personally to be highly suspect. I wouldn't contribute to a project that required that. -- Ben Reser [EMAIL PROTECTED] http://ben.reser.org Conscience is the inner voice which warns us somebody may be looking. - H.L. Mencken -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
