Hyman Rosen wrote: > > Tim Smith wrote: > > The game as a whole would be a collective work that > > contains many separate works: the game code, the individual works of > > art, and the individual works of sound. Distributing them all together > > would fall under the "mere aggregation" part of GPL. > > I disagree. If a game operates by using many files in an > integrated presentation, that is not mere aggregation. It > is a collective work.
Gu-NÜ-speak "mere aggregation" means collective work or noncopyrightable aggregation. Both fall under "mere aggregation". Only derivative works don't fall under "mere aggregation". To wit (think of an OS like say Gu-NÜ-slash-Linux which "operates by using many files in an integrated presentation"): http://www.novell.com/products/opensuse/eula.html ------ The Software is a modular operating system comprised of numerous components that may be accompanied by separate license terms. The Software is a collective work of Novell; although Novell does not own the copyright to every component of the Software, Novell owns the collective work copyright for the Software. ------ http://www.redhat.com/licenses/rhel_us_3.html ------ LICENSE AGREEMENT AND LIMITED PRODUCT WARRANTY RED HAT® ENTERPRISE LINUX® AND RED HAT® APPLICATIONS This agreement governs the use of the Software and any updates to the Software, regardless of the delivery mechanism. The Software is a collective work under U.S. Copyright Law. ------ Discussion: http://www.usfca.edu/law/determann/softwarecombinations060403.pdf ------ GPL Terminology and Interpretation a) Works based on the Program The first operative Section of the GPL (Section 0) reads as follows: This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The Program, below, refers to any such program or work, and a work based on the Program means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term modification.) Each licensee is addressed as you. Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does. As is common in commercial contracting practice, the first Section of the GPL contains a number of definition and specifications that apply to the document as a whole (e.g., the first sentence and the first ten words of the second sentence define the meaning of the capitalized term Program). Less common, however, are the explanatory notes that the GPL drafters interwove with the legally binding definitions (e.g., the last sentence acknowledges that the conditions in the preceding half-sentence may not always be met in practice). The cause for this anomaly seems to lie in the genesis of the document: it was written by programmers for programmers. In order to make the document useful for non-lawyers (and projects without a budget for legal advice), and to establish the GPL as a standard, the GPL drafters tried to draft it as user-friendly and accessible to programmers as possible. Along these lines, the second sentence of Section 0 defines works based on the Program as the Program itself or any derivative work under copyright law followed by a (not entirely accurate) interpretive explanation regarding what the term derivative works means under copyright law. This explanation, introduced with that is to say, gives an indication of what the GPL drafters thought, hoped or may argue in a dispute, is the meaning of the term derivative works. Section 2 of the GPL contains additional explanations and declarations of intent, which even include collective works, i.e., a term defined by the Copyright Act in contrast to the term derivative work.250 In order to resolve these textinternal contradictions, it would seem appropriate to rely on the operative portion of the definition in Section 0 (which contains the reference to the Copyright Act) and treat the explanatory notes as statements of opinion that have been added for convenience purposes only.251 Accordingly, the GPL would be interpreted to define work based on the Program to mean derivative work as defined by the Copyright Act.252 b) Derived Works The first sentence of Section 2 of the GPL permits modifications to the GPLed program in reference to the defined term work based on the Program. The following sentences of Section 2 contain a number of license conditions and explanations and use a number of other terms to describe the result of modifications besides work based on the Program, including modified files,253 modified program,254 and modified work.255 The critical Subsection (b) refers to any work . . . that in whole or in part contains or is derived from the Program or any part thereof. Taken out of context, each of these terms seems to go well beyond the statutory definition of derivative works in the Copyright Act, because the statutory definition is not satisfied by every modification or any work that contains any part of another work, or that is derived from any part of another work. As discussed, under the Copyright Act, a combination of code with a GPLed program constitutes a derivative work of the GPLed program only if the combination (i) is sufficiently permanent, (ii) contains significant and creative portions of the GPLed program, (iii) is creative in its own right, and (iv) involves significant and creative internal changes to the GPLed program.256 In context, however, it appears that the drafters of the GPL randomly chose substitutes to the somewhat awkward term work based on the Program and used the substitute terms synonymously to improve the sentence flow and readability. This impression is confirmed throughout the document, which also uses other substitutes, including the derivative or collective works based on the Program257 and derivative works.258 Some of the explanations throughout the GPL as well as the Free Software Foundations FAQ259 and Lesser General Public License260 imply that the drafters of the GPL intended to cover software combinations that would not qualify as derivative works under the Copyright Act according to the test developed in this Article.261 This is primarily evidence of a difference of opinion in the application of copyright lawand does not have to mean that the condition in Section 2(b) of the GPL covers more than derivative works as defined by the Copyright Act. Yet, uncertainties remain given the fact that the explanations appear within the license text. c) Rules of Contract Interpretation Given the prevailing controversies and uncertainties regarding the exact scope of Section 2(b) of the GPL, it seems worth exploring whether presumptive rules of contract interpretation would favor one interpretation over another. In this context it is important to note that quite different rules could apply depending on the context of a particular licensing relationship. The GPL contains neither a contractual choice of law nor a forum selection clause. Under statutory and common law conflicts of law principles, which vary from jurisdiction to jurisdiction, the governing law of a licensing relationship subject to the GPL will be determined by the residency of the licensor and licensee, and various other factors. Thus, in practice, there is not one GPL that applies to all free software globally. Instead, thousands of different versions provide for slightly different rights and obligations of the licensing parties based on peculiarities of the governing contract law.262 Nevertheless, two principles of contract interpretation are likely to apply in most jurisdictions in one form or another: Courts try to (i) determine the parties intent and (ii) interpret ambiguous clauses against the party who caused the ambiguity . (i) Parties Intent Courts typically try to determine the intent of the contracting parties as objectively evident to each other at the time of contract formation.263 Where the contract language is clear and unambiguous, courts will usually not look to extrinsic evidence of intent.264 Given the uncertainties around Section 2(b) of the GPL, however, it seems likely that courts would feel tempted to look beyond the four corners of the document. Even though the GPL emphasizes that it constitutes a license as opposed to a contract,265 courts would likely apply contract interpretation rules and try to determine the intent of the copyright owner who selected the GPL and the licensee who selected the program. In many cases, courts will probably find that neither party really had a choicethe GPL came to apply because a developer of a previous program version had opted for the GPL. Where the Free Software Foundation itself is involved as a party, it may be appropriate to take the various examples, explanations and programmatic and ideological statements on its website into consideration. Where the Free Software Foundation is not involved, however, it will often be difficult to confirm that parties to a dispute were familiar with these materials at the time the licensing relationship was formed. (ii) Interpretation against the Drafter Another common principle of contract interpretation is that in case of uncertainties, courts should interpret the contract against the party who caused the uncertainty to exist.266 This could help licensees in cases against the Free Software Foundation. But in cases where neither party has selected the GPL to apply for a particular modified program, it is not clear that either party is to blame for the GPLs uncertainties. d) Summary The GPL permits end-users to combine software and execute software in combination without any restrictions, even if the combinations constitute derivative works of the GPLed programs. As a consequence, contrary to the views expressed by the Free Software Foundation, distributors can separately distribute add-on products intended for combination with GPLed code without fear of incurring contributory liability. Thus, the distribution of add-ons to computer games discussed in Section IV.3 of this Article should be unproblematic in the GPL context, since the suppliers of the add-on products do not also sell the actual games. The GPL strictly prohibits the distribution of program combinations that qualify as derived works of GPLed programs, unless the entire combination can be subjected to the license terms of the GPL. This has two serious consequences for licensees: First, they are prohibited from distributing GPLed programs in combination with proprietary third party programs whose copyright owners do not agree to the GPL terms. Second, if licensees create derived works of GPLed programs, they cannot commercialize such derived works through proprietary license models as contemplated by the Copyright Act. Despite remaining uncertainties, the context of the GPL favors an interpretation of the term derived work to mean a derivative work as defined by the Copyright Act. Consequently, the combinations discussed in Section IV.2 and IV.4 should also be permissible under the GPL, because they do not involve a creation of derivative works. However, the language of the GPL also allows broader interpretations and its drafters take the positionin documents that do not seem determinative for contract interpretation purposesthat dynamically linked programs fall under Section 2(b) if distributed in combination with GPLed code. [...] Copyright Misuse By imposing GPL § 2(b) on licensees, copyright owners try to magnify their rights beyond those sanctioned by the Copyright Act in two different ways. First, Section 103 of the Copyright Act allocates ownership rights to authorized derivative works to the author to incentivize further investment in additional creativity.274 In contrast, Section 2(b) of the GPL, requires creators of derivative works to forfeit their exclusion rights and any chance to generate licensing revenue.275 Second, if the term derived work were found to encompass more than derivative works and included, for example, compilations and other forms of software combinations, Section 2(b) of the GPL would seek to prohibit activities that Section 106 of the Copyright has not reserved for copyright owners and thus exponentially increase the impact caused by the first copyright magnifying mechanism.276 Given the fact that copyright misuse is an equitable concept under U.S. law, it is difficult to predict if and how a court would apply this doctrine in the context of the GPL. On one hand, the non-profit status and idealistic goals pursued by the proponents and original adopters of the GPL may sway courts in favor of the GPL. On the other hand, the copyleft policy manifested in the GPL seems a more direct attack on the delicate balance between access and protection in the Copyright Act277 than any other licensing practice that has so far caused courts to find copyright misuse.278 In fact, the intended objective behind Section 2(b) of the GPL is to eliminate the effects of copyright protection for computer programs and generally replace it by the rules of the GPL.279 This flies in the face of the many decisions by U.S. courts that found it necessary to protect economic interests of software copyright owners who pursued proprietary licensing models.280 Also, more and more companies use the GPL for purposes other than idealism. If courts enforce clauses like Section 2(b) of the GPL, they would probably also have to accept it if proprietary software companies start prohibiting combinations of their programs with other software beyond the boundaries of the Copyright Act. This could have potentially significant implications for interoperability. ------ regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
