Raul Miller wrote: (presenting a very reasonable argument, but...)
>Let's say that we have a court case which involves some contested >GPLed work. How should we proceed? > >First, let's consider a work which doesn't have any binaries. This >would be no different from any other copyright case -- you have to >show that the work in question is copyrighted under the GPL, and >you'd have to show that the terms of the GPL are being violated. >This should be relatively simple, and we can neglect sections 2 and >3 (which are clearly being complied with if the rest of the license >is being followed). > >Now let's imagine that we've got a case which involves binaries. >What do we have to do? > >First, we need exhibits: the sources, and the binaries. Out of >consideration for the court, we want to pick examples which are as >simple as possible while representing all of the important >contested issues. So let's imagine we have Exhibit A (the sources) >and Exhibit B (the binary). [We need to also show that this binary >is representative of something which is being distributed, but >that's not really different from what you have to do in other >copyright cases, so I'll ignore that part.] > >Second, we need to show that Exhibit B is derived from Exhibit A. >Again, we want to present this in a simple and easily >understandable form, and we want to also present complete >information. > >Once we've shown that B is derived from A, we can start examining >the terms of the GPL to make sure that they are being followed. > >For example, let's say now that we're the defending party, and we >want to show that the mere aggregation clause applies. To do this, >we would show that the disputed work could be replaced by something >trivial, and that having done so, the program is still the same >program -- we might do this by showing that it still has the same >behavior.
Your argument here is interesting but it can be used to *prove* mere aggregation... and...
> >Switching sides again, if someone asserted that the mere >aggregation clause applied, and used program behavior to make that >assertion, and I believed that mere aggregation did not apply, I >would show how the program failed to operate in some independent >context, with the disputed section removed.
It can *not* be used to *disprove* mere aggregation... because the defendant can substitute the disputed part for something *not* trivial (as in, substituting libssl by libtls or something) and the program will continue to work as usual.
> >Is that clear enough? > >Now, back to the argument: an argument has been raised that the GPL >is flawed because a "work based on the Program" defined in two >parts, where the first part asserts that "work based on the >Program" is a derivative work. The assertion has been made that >the second part of that definition is meaningless. > >Let's assume that this assertion is true, that the second part of >that definition is meaningless. Let's further assume that I can >construct an example case where a work isn't covered by the GPL >because the second part of that definition is meaningless. What >would that mean?
It would mean you have a work that is a mere aggregation, and the GPL explicitly permits the licensee to distribute the merely-aggregated work.
> >Since Section 0 says that the GPL grants you license to distribute >this work, and since there's no part of the GPL that grants you >license where Section 0 does not apply, in our hypothetical case we >would have shown that the GPL does not grant you license to >distribute this work.
You are still ignoring section 2, paragraph 3. My argument is the following: any work containing the Program or parts of it that is not a derivative work of the Program is, necessarily, an anthology work containing such part of the Program and, as such, is permitted by GPL #2�3 as a (mere) aggregation.
> >At this point, either: > >A) Copyright law doesn't apply, so it doesn't matter that you don't >have license, or > >B) The GPL doesn't apply, so it doesn't matter that the GPL doesn't >grant you license, of > >C) Distributing the work is prohibited by law. > >My argument is that if you reach C) by ignoring the second half of >the definition of "work based on the Program", that you're doing >something wrong. > >Does that make sense? >
Yes. But I agree to disagree with you.
-- HTH, Massa
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