On 7/30/05, Ken Arromdee <[EMAIL PROTECTED]> wrote: > By this reasoning, if linking is normally a breach of rights, I could give you > some BSD licensed software and do exactly the same thing. I am estopped from > suing you for linking with my BSD software, but I can still prevent other > people from helping you link with it, since the linking is still infringement > despte the license telling you you can do it.
But the GPL doesn't tell you in so many words that end users have a "license to link". As I wrote, to get to end-user safety without really looking at the interactions between linking and the GPL language, you need to combine a statutory provision that narrows the rights reserved to copyright holders (17 USC 117) with a negative in the GPL (suggesting that, if things that happen during end use don't qualify as "modification" in a copyright sense, then they're entirely outside the GPL terms). In this view, the deliberate excision of "right to use" in the GPL v2 (apparently for the sake of bolstering the "copyright-based license" fiction) leaves end users not with a _license_ -- that's a term in a contract -- but with an _estoppel_ argument against attempts to sue them for doing things that the copyright holder implied they were permitted to do incident to normal use. (End users could also argue, entirely on statutory grounds and without reference to the GPL text at all, that they became the "owner of a copy" under the Section 109 standard when they obtained it in good faith from a presumptively licensed distributor, and proceed directly to their Section 117 rights without need for estoppel. But this cannot of course be used circularly to protect the distributor.) The BSD and MIT X11 "licenses", as I read them, are pure creatures of estoppel and not copyright licenses (in the sense of binding contract terms) at all. Their unilateral grant is so broad as to protect both end use and distribution; but as no one has accepted any significant obligation of return performance, only a "reliance to one's own detriment" argument supports a claim that the copyright holder can't abrogate that grant at any moment. > If I give you some software and say that you can link it in private, that's > *permission*. The GPL doesn't need to override the meaning of "infringement", > because it already has a meaning, and that meaning already says that if you > have permission to do it, it isn't infringement. If it isn't infringement, > helping you do it can't be contributory infingement. As I wrote, a copyright infringement claim could only be brought home against the distributor "_if_ it were correct that the act of linking breached rights reserved to the copyright holder." Suppose the end user's actions are in principle infringing but the copyright holder's statements have led to a sort of half-assed estoppel-based substitute for a license. Then there is no guarantee that someone who _is_ unambiguously engaging in copying and modification (and therefore needs the license offered in the GPL) can rely on the end users' de facto immunity from suit as a defense against claims that end users are being encouraged to bend the rules. That wouldn't really be a copyright infringement claim, though; it would be a claim of breach of the duty to deal in good faith implicit in any contractual relationship, argued as grounds either for recovery of damages under the contract or for rescission of the contract so that a copyright infringement claim can proceed. > >Compare, for instance, Micro Star v. FormGen. You could argue that > >the "unauthorized sequel" didn't really exist until an end user loaded > >the MAP file into Duke Nukem, and Micro Star neither authored the MAP > >files nor distributed them together with Duke Nukem. > > Oh, come on. FormGen claimed that the MAP files themselves were > infringements, > because they used the game setting. It didn't matter that the user linked > them, because they were unauthorized sequels all by themselves. This was one > of the distinctions the court made between it and the Game Genie case, because > in their view the Game Genie only lets consumers create derivatives, but the > MAP files are derivatives. The Game Genie case did _not_ conclude that consumers were creating derivatives; as the Micro Star opinion comments, the discussion of the "fair use" defense in Galoob was dicta based on a hypothetical. As for the contention that MAP files were "unauthorized sequels all by themselves", I do think it's a bit subtler than that, though I can understand your reading the opinion that way. Observe Footnote 5: "We note that the N/I MAP files can only be used with D/N-3D. If another game could use the MAP files to tell the story of a mousy fellow who travels through a beige maze, killing vicious saltshakers with paperclips, then the MAP files would not incorporate the protected expression of D/N-3D because they would not be telling a D/N-3D story." This amounts to a declaration that the MAP files are not really "unauthorized sequels" in isolation, but that they have no substantial use other than combination with Duke Nukem to create unauthorized sequels. > # More significantly, Nintendo alleged only contributory infringement-- > # that Galoob was helping consumers create derivative works; FormGen here > # alleges direct infringement by Micro Star, because the MAP files encompass > # new Duke stories, which are themselves derivative works. The contributory / direct infringement difference is kind of interesting from a tactical point of view, but IMHO it's not the important thing. The Game Genie was simply a ROM-fetch-diverting machine that attached between game console and cartridge, supplied with a set of reverse engineered codes indicating which bytes to replace in order to change various player-character attributes in various games. Claiming that it did anything to the "creative expression" in the games was a stretch to begin with; but the Galoob court took the easy way out and said that the modified game experience wasn't a "derivative work" because it wasn't in a "concrete or permanent" form. The writer of the bit you quoted from the Micro Star opinion (Judge Kozinski or, perhaps more likely, his elbow clerk) picked the contributory/direct distinction as a handy way of distinguishing Micro Star from Galoob on the facts, and therefore disposing of the argument that the court was obliged to follow Galoob's ruling per stare decisis. However, as the previous sentence indicates, the Galoob holding wouldn't have been dispositive anyway: "But the fair use analysis in Galoob was not necessary and therefore is clearly dicta." This, ironically, makes the sentence you quoted dicta as well. Had I been writing the Micro Star opinion, I think I would have de-emphasized "contributory vs. direct" (which leads, given different fact patterns, to unprofitable hair-splitting about encoding patches as editor commands so they don't contain literal text from the original, etc.) and focused instead on "substantial non-infringing use". If I may say so, this illustrates the dangers of myopic quotations from case law (and statute). That phrase "more significantly" is impossible to assess properly without context. The contributory/direct distinction may be in a technical sense more significant for the purpose of distinguishing a potentially dispositive precedent than the mere observation that the parallel argument in the precedent was an alternate holding. That doesn't make it the main thrust of the Micro Star opinion. I read it principally to conclude that copyright holders on computer programs that double as works of fiction have recourse, irrespective of the technical details of how parts of the original are recycled into a sequel, to the traditional standard of comparing "objective details of the works: plot, theme, dialogue, mood, setting, characters, etc." Let me restate that a little less polysyllabically. Apparently Micro Star's lawyers argued, among other things, that the facts of its dispute with FormGen resembled those of Galoob's dispute with Nintendo closely enough that Micro Star would be entitled to the same conclusions about "fair use" that (according to them) got Galoob off. If they had had both the facts and the structure of the Galoob opinion straight, the panel would have been obliged to follow precedent -- especially since the district court bought a related argument from Galoob, by which it concluded that Micro Star's product wasn't a derivative work in the first place. So a large fraction of the Micro Star opinion is devoted to explaining what makes Duke Nukem MAP files a derivative work in a way that no machine, blob of bytes, or sensory experience in Galoob was. The opinion asserts: "In the present case the audiovisual display that appears on the computer monitor when a N/I level is played is described--in exact detail--by a N/I MAP file." I think that's a bit of a stretch, but it's forgivable because it's contrasted with "no one could possibly say that the data values inserted by the Game Genie described the audiovisual display." The opinion then engages in a bunch of fancy dancing to circumvent the Galoob court's laziness in focusing on "concrete or permanent" form instead of the real issue -- the fact that the Game Genie "modifications" were too trivial to "represent an original work of authorship" and so it was totally inappropriate to look to the provisions about "derivative works" in order to decide whether they infringed. After the fancy dancing, we get three paragraphs on the "fair use" defense, including that somewhat curt dismissal of the parallel to Galoob, which is neither binding (because that bit of Galoob was exploring a counterfactual, "what if we did grant that a derivative work had been created") nor adequately parallel on the remaining facts (the bit you quoted). Then we get one paragraph on a claim of shelter under an implicit extension of the Duke Nukem license terms, and one on a vague estoppel-ish theory that "FormGen abandoned all rights to its protected expression" by encouraging end users to create new levels. These bits are all citable as precedent, even as binding precedent, but they focus pretty closely on applying existing law to the fact pattern so as not to create obstacles for a later court to jump if the facts before it require the articulation of new law. Now I'm no lawyer and I don't have any personal communications from on high to back up the interpretation above. But it seems to me that, while the holding in Micro Star is substantially better thought out than that in Galoob, there's still room to replace the contorted analysis based on "when, exactly, was a derivative work created?" with something better connected to creative expression. Now that the Ninth has thought through the "substantial non-infringing use" analysis in the context of Napster and Grokster, maybe they can be persuaded to apply it consistently when faced with claims like Nintendo's and FormGen's. Cheers, - Michael (IANAL, TINLA)
