subject:"RES\: What makes software copyrightable anyway\?"

On 5/20/05, Raul Miller [EMAIL PROTECTED] wrote:
 (Note, I might come back to some of this later -- I need to
 think about whether I want to bother raising some issues, among
 other things --, but a few of these I have immediate questions or
 comments about.)

Yeah, I have some homework to do, too.

 On 5/20/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
   There is some question about whether Quagga+Net SNMP+libssl
   is uncopyrightable.
 
  No, there isn't.  There's no selection and arrangement creative
  expression there.  It's silly to say that some third party could
  obtain a copyright on combining those things and enforce it on the
  Quagga copyright holders themselves.  Copyright doesn't protect ideas,
  it protects expression; and this is a doctrine of merger instance if
  I ever saw one.
 
 Are you saying I could just as well select, say, libperl, apache, and
 mysqld and expect them to be just as satisfactory' when combined with
 Quagga?
 
 Or are you saying that since the authors of Quagga already made
 that selection that no one else has to?

I'm saying that there is no creative expression involved in
selecting and arranging those three components.  In modifying
Net-SNMP to add SNMPv3 support by calling routines from libssl, sure. 
Likewise in modifying Quagga to publish routing tables via SNMP, using
Net-SNMP to do it.  Perhaps even in further modifying Quagga to do
whatever it is that I_WANT_OPENSSL does to it.  But selecting and
arranging the results?  No.  Even if you want to argue that there's
anything non-obvious left about it, the doctrine of merger of idea and
expression applies.

The fact that they are independent works of authorship, gathered into
a collection, matters.  It means that the only traction that copyright
law can get on the act of gathering them is via the collective works
angle, which is (as I have repeatedly explained) designed to prevent
one anthology publisher from ripping another off by going straight to
the copyright holders on the individual entries.  Now mind you, a
contract containing a copyright license can also contain pledges not
to distribute this or that collection, copyrightable or not; and maybe
even those pledges can be part of the scope of license.  But that's
different.

1. a.  Official or legal permission to do or own a specified thing.
 
  Feeble.  Get a real dictionary.
 
 Findlaw's legal dictionary says:
 
1 a: a right or permission granted by a competent authority (as of
a government or a business) to engage in some business or
occupation, do some act, or engage in some transaction which
would be unlawful without such right or permission
 
 Better?

No.  Perhaps you missed, two lines later:

c: a grant by the holder of a copyright or patent to another of any of
the rights embodied in the copyright or patent short of an assignment
of all rights

As I said before, pretty wordplay will get you nowhere in a courtroom.
 If you don't want to know that contract law is the only way to create
a copyright license, then I suppose that I can't make you know it.  Is
there anyone else reading who is still unclear on this point?

  The non-GPL license option to MySQL had no relevance to that case
  whatsoever.  It was not claimed by Progress Software, it is not
  mentioned in the opinion or in Eben Moglen's affidavit, and as far as
  I can tell the judge may not even have known that existed.  Unless you
  have some piece of the court record that I don't yet -- in which case,
  pony up -- this is a lame bit of misdirection.
 
 I'll quote the beginning of point 30 of that affidavit for you:
 
MySQL AB engages in ``dual licensing.'' This means that it licenses
a version of MySQL to be freely used, copied, modified and
distributed by everyone under the GPL, and also makes versions
of its program that are distributed to particular customers without
the right of free distribution.
 
 I don't have at hand the claims of Progress Software, but Saris
 clearly was informed of this issue.

Hmm.  I missed that.  But in any case, is there any evidence that it
was claimed by either party to be relevant, or formed part of Judge
Saris's analysis in any way?  To me, the opinion makes it quite clear
that it was not.  Not that it matters, really; a precedent from a
court of fact isn't binding on a subsequent court of fact.  But I'll
still shell out the $12 for Lexis 5757 if the law library (or a
friendly lawyer) will mediate.

You seem to be insisting that it was a random co-alignment of the
stars, rather than the mundane weight of precedent, that caused Judge
Saris to apply contract law standards to interpret the GPL and deny
MySQL's request for preliminary injunction on a claim of breach of
the GPL license (from MySQL's FAQ).  If you want to retain that
illusion, I can't exactly disprove it without more data.  Honestly
though -- is it remotely plausible that she, or any judge, would give
copyright-based license the time of day?

Cheers,
-

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  On 5/20/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
There is some question about whether Quagga+Net SNMP+libssl
is uncopyrightable.
  
   No, there isn't.  There's no selection and arrangement creative
   expression there.  It's silly to say that some third party could
   obtain a copyright on combining those things and enforce it on the
   Quagga copyright holders themselves.  Copyright doesn't protect ideas,
   it protects expression; and this is a doctrine of merger instance if
   I ever saw one.
 
  Are you saying I could just as well select, say, libperl, apache, and
  mysqld and expect them to be just as satisfactory' when combined with
  Quagga?
 
  Or are you saying that since the authors of Quagga already made
  that selection that no one else has to?
 
 I'm saying that there is no creative expression involved in
 selecting and arranging those three components.  In modifying
 Net-SNMP to add SNMPv3 support by calling routines from libssl, sure.
 Likewise in modifying Quagga to publish routing tables via SNMP, using
 Net-SNMP to do it.  Perhaps even in further modifying Quagga to do
 whatever it is that I_WANT_OPENSSL does to it.  But selecting and
 arranging the results?  No.  Even if you want to argue that there's
 anything non-obvious left about it, the doctrine of merger of idea and
 expression applies.

After looking at this for a bit, I'm thinking that Quagga is based on
libsnmp and that libsnmp is based on libssl.

 The fact that they are independent works of authorship, gathered into
 a collection, matters.

How could Quagga have been written without libsnmp?

How could libsnmp have been written without libssl?

[Answer: they'd each have been very different.]

 1. a.  Official or legal permission to do or own a specified thing.
  
   Feeble.  Get a real dictionary.
 
  Findlaw's legal dictionary says:
 
 1 a: a right or permission granted by a competent authority (as of
 a government or a business) to engage in some business or
 occupation, do some act, or engage in some transaction which
 would be unlawful without such right or permission
 
  Better?
 
 No.  Perhaps you missed, two lines later:
 
 c: a grant by the holder of a copyright or patent to another of any of
 the rights embodied in the copyright or patent short of an assignment
 of all rights
 
 As I said before, pretty wordplay will get you nowhere in a courtroom.
  If you don't want to know that contract law is the only way to create
 a copyright license, then I suppose that I can't make you know it.  Is
 there anyone else reading who is still unclear on this point?

I find it hard to imagine a court case about whether or not contract law
is the only way to create a copyright license.

I find it easy to imagine that a court would be only concerned about
determining the facts about copyright license in the context of
specific cases.

Ultimately, though, what a court is typically concerned with 
in cases involving copyright claims is whether the copyright 
is being infringed (and, if it is, whether that matters, legally).

Informally, it's convenient to talk about things without trying to
mimic the exact path a court might follow ever time a new concept
is discussed.  If we're going to sidetrack on every fine minute
point, we'll be forever stuck on issues like Louisiana has used 
civil law instead of common law or Judge Bea isn't likely to 
care about that kind of precedent.

  I don't have at hand the claims of Progress Software, but Saris
  clearly was informed of this issue.
 
 Hmm.  I missed that.  But in any case, is there any evidence that it
 was claimed by either party to be relevant, or formed part of Judge
 Saris's analysis in any way?

Well, let's put it this way... I see stuff like this:
http://library.findlaw.com/2003/Jun/16/132811.html

   Progress alleged breach of contract, tortious interference with 
third-party contracts and relationships, unfair competition and 
several similar business-related torts. Progress also sought 
declaratory judgment as to its trademark rights and other rights 
relating to its sale and distribution of the MySQL software.

I find it hard to believe that they'd have filed those charges if
the only contract involved had been the GPL.

 You seem to be insisting that it was a random co-alignment of the
 stars, rather than the mundane weight of precedent, that caused Judge
 Saris to apply contract law standards to interpret the GPL and deny
 MySQL's request for preliminary injunction on a claim of breach of
 the GPL license (from MySQL's FAQ). 

I don't believe I've mentioned anything about co-alignment of stars.

I do believe that my specific point here, which I'm guessing you're
trying to refute, is a point which is based rather heavily on
contract law.

 If you want to retain that illusion, I can't exactly disprove it without more 
 data.  Honestly though -- is it remotely plausible

Re: RES: What makes software copyrightable anyway?

On 5/20/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/20/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  As a paraphrase of candidate E, it's erroneous.  The grammar, as I
  read it, doesn't allow it to be anything else.  But a licensee is
  certainly welcome to argue for the presence of an ambiguity there if
  they have some reason to prefer candidate C.
 
 One other observation here:
 
 It's entirely possible that a court would not find this phrasing
 ambiguous.
 
 Here's the full text of the definition of derivative work from
 17 USC 101:
 
A derivative work is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art 
 reproduction,
abridgment, condensation, or any other form in which a work may be
recast, transformed, or adapted. A work consisting of editorial revisions,
annotations, elaborations, or other modifications which, as a whole,
represent an original work of authorship, is a derivative work.
 
 I believe that we've established that for a work to be not a derivative
 work that it's not sufficient to show that it's a collective work.
 
 And, some of those possibilities -- elaborations, annotations,  adapted,
 recast, etc. as well as the bit about based upon one or more preexisting
 works  all seem to point at the idea that if a computer program as a
 whole is to be granted special copyright protection beyond that of
 its individual components that it is a derivative work of those components.

Horsepucky.  A derivative work has to be an original work of
authorship under the same standard as a non-derivative work.  Putting
three things into a bucket doesn't qualify.  A competent court knows
perfectly well what elaborations (e. g., illustrated editions),
annotations (critical editions), adaptation (conversion to a Serious
Screenplay), and recasting (executing a marble sculpture in bronze)
are.

While these categories are exemplary and can be bent to cover
previously uncontemplated forms of work, judges are quite aware that
they do so at their peril.  If you think that sister circuits'
critiques of Rano v. Sipa Press are brutal, you should see what
happens when an appeals court gets something wrong and it has
significant public policy impact.  What do you think would be the
consequences of holding that a software vendor can win a copyright
infringement suit based on an arbitrary combination of their software
with other independently developed stuff?

While we're on Rano v. Sipa Press (
http://www.kentlaw.edu/e-Ukraine/copyright/cases/rano_v_sipa.html ),
I'll point out that the part of it that has attracted broad criticism
is section IV.A, holding that Section 203 of the Copyright Act
overrides termination at will provisions in state contract law. 
Section IV.B, holding that Rano had no grounds for termination for
material breach, is uncontroversial.  Here is a paragraph from that
section:

quote
[13] Here, it is clear that Rano attempted to rescind the agreement.
The question is
whether he had the right to rescind. A breach will justify rescission
of a licensing
agreement only when it is of so material and substantial a nature
that [it] affect[s]
the very essence of the contract and serve[s] to defeat the object of
the parties
[The breach must constitute] a total failure in the performance of the
contract.
Affiliated Hospital Products, 513 F.2d at 1186; Nolan v. Williamson
Music, Inc., 300
F.Supp. 1311, 1317 (S.D.N.Y.1969), aff'd sub. nom. Nolan v. Sam Fox
Publishing Co., 499
F.2d 1394 (2d Cir.1974); 3 Nimmer section 10.15[A] at 116-18.
/quote

The Ninth's use of precedents from the Second, and the citation from
Nimmer, suggest that this is a principle of interpretation of
copyright licenses that applies US-wide.  I expect that similar rules
apply elsewhere in the world (IANALIAJ).  So we can all forget about
termination for trivial breach, especially if it's inadvertent and
cured at a reasonable stage in legal proceedings.

As for termination at will -- I doubt that any court in any
jurisdiction would permit such a thing with respect to the GPL, but
there is certainly room for a tactical choice of law and venue there. 
That's why sane people write choice of law provisions (not
necessarily choice of venue, which is controversial, and often
ignored in forum non conveniens proceedings) into their licensing
agreements, not to mention explicit term and termination clauses. 
The GPL, again pretending not to be a creature of contract law, omits
them, to the great annoyance of people who want to know the rules of
the game the FSF is playing.  But the FSF likes it that way -- FUD is
their stock in trade.

 And I think we can agree that, at least within the U.S., this definition
 is a part of copyright law.
 
 [On the flip side, if it can be shown in court that there's some criteria 
 under
 which all programs are free of copyright law, that's probably a good

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 While these categories are exemplary and can be bent to cover
 previously uncontemplated forms of work, judges are quite aware that
 they do so at their peril.  If you think that sister circuits'
 critiques of Rano v. Sipa Press are brutal, you should see what
 happens when an appeals court gets something wrong and it has
 significant public policy impact.  What do you think would be the
 consequences of holding that a software vendor can win a copyright
 infringement suit based on an arbitrary combination of their software
 with other independently developed stuff?

I think you're talking about something different from what I'm talking
about.  I'm talking about cases where the program as a whole
is granted special copyright protection beyond that of its individual
components.  (That's a literal quote from the text you were responding
to.)

 The Ninth's use of precedents from the Second, and the citation from
 Nimmer, suggest that this is a principle of interpretation of
 copyright licenses that applies US-wide.  I expect that similar rules
 apply elsewhere in the world (IANALIAJ).  So we can all forget about
 termination for trivial breach, especially if it's inadvertent and
 cured at a reasonable stage in legal proceedings.

Sure.  To understand this issue, it's probably worth looking at
section 1-106 of the UCC: Basically, in breach, the point is to
make it as if the breach had not happened.

In a truly trivial breach (de minimus) court isn't going to care at
all.

In some breaches, the court can declare that the infringement
was fair use (or find some other reason that the infringement
was legal).

In minor breaches, the court could easily declare that the 
infringement constitutes a grant of license under the terms 
of the GPL by the infringing party .

The GPL's termination clause only would kick in where none of
the above could hold -- and I think we can agree that that would
not be a trivial breach.

 As for termination at will -- I doubt that any court in any
 jurisdiction would permit such a thing with respect to the GPL, but
 there is certainly room for a tactical choice of law and venue there.
 That's why sane people write choice of law provisions (not
 necessarily choice of venue, which is controversial, and often
 ignored in forum non conveniens proceedings) into their licensing
 agreements, not to mention explicit term and termination clauses.
 The GPL, again pretending not to be a creature of contract law, omits
 them, to the great annoyance of people who want to know the rules of
 the game the FSF is playing.  But the FSF likes it that way -- FUD is
 their stock in trade.

You've been fairly free with your criticisms of the FSF.

Usually, this has been in the context of an obscure legal claim which
on close analysis seems to be saying something at odds with your
criticisms.

Personally, I find this annoying.

  And I think we can agree that, at least within the U.S., this definition
  is a part of copyright law.
 
  [On the flip side, if it can be shown in court that there's some criteria 
  under
  which all programs are free of copyright law, that's probably a good thing
  for the free software community.]
 
 Have you given more than a moment's thought as to what would come of
 that, in the absence of a new and better software rights law to
 replace it?  For starters, bye-bye GPL, and bye-bye all other open
 source licenses -- you publish it, it's public domain.  Next, bye-bye
 software industry as we know it; and while you might think you would
 like that, you may think again when your telephone network and your
 electrical grid and your banking system all collapse because half of
 the vendors of their ops software can't make the transition to your
 Brave New World.  I'm not going to bother arguing the rest of the way
 to the Death Of Debian (TM).  :-)

Do you not classify this as FUD?

If a court finds that there is some context where copyright does not apply
to any programs, the scope of that precedent would certainly be far 
narrower than what you've suggested in this paragraph.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Anthony DeRobertis [EMAIL PROTECTED] wrote:
  As a general rule, those commands don't go figuring out where to
  get the sources and download them for you.  Nor are they specially
  documented in the distributor's notes on the package.
 
 I assure you ./configure and make are quite documented in any sane
 package that uses them. I bet even ./configure --with-ssl is.

None of which fetches anything...

But let's take a step backwards and focus on what I think is the
crucial issue:

Did the Quagga developers incorporate anyone ELSE's GPLed 
code?

Because, if not, I don't think the copyright holders care
about any of this.

Thanks,

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  I'm saying that there is no creative expression involved in
  selecting and arranging those three components.  In modifying
  Net-SNMP to add SNMPv3 support by calling routines from libssl, sure.
  Likewise in modifying Quagga to publish routing tables via SNMP, using
  Net-SNMP to do it.  Perhaps even in further modifying Quagga to do
  whatever it is that I_WANT_OPENSSL does to it.  But selecting and
  arranging the results?  No.  Even if you want to argue that there's
  anything non-obvious left about it, the doctrine of merger of idea and
  expression applies.
 
 After looking at this for a bit, I'm thinking that Quagga is based on
 libsnmp and that libsnmp is based on libssl.

Not in any copyright sense whatsoever.  And what, every Perl script is
based on Perl?  Every Lotus 1-2-3 macro is based on Lotus?  Come
back to Earth, please.

  The fact that they are independent works of authorship, gathered into
  a collection, matters.
 
 How could Quagga have been written without libsnmp?
 
 How could libsnmp have been written without libssl?
 
 [Answer: they'd each have been very different.]

Idea / expression dichotomy.  Deal with it.

  No.  Perhaps you missed, two lines later:
 
  c: a grant by the holder of a copyright or patent to another of any of
  the rights embodied in the copyright or patent short of an assignment
  of all rights
 
  As I said before, pretty wordplay will get you nowhere in a courtroom.
   If you don't want to know that contract law is the only way to create
  a copyright license, then I suppose that I can't make you know it.  Is
  there anyone else reading who is still unclear on this point?
 
 I find it hard to imagine a court case about whether or not contract law
 is the only way to create a copyright license.
 
 I find it easy to imagine that a court would be only concerned about
 determining the facts about copyright license in the context of
 specific cases.

This isn't a point of fact, it's a point of law, and a very, very well
settled one.  I am done debating with you on this topic, I think.

 Ultimately, though, what a court is typically concerned with
 in cases involving copyright claims is whether the copyright
 is being infringed (and, if it is, whether that matters, legally).
 
 Informally, it's convenient to talk about things without trying to
 mimic the exact path a court might follow ever time a new concept
 is discussed.  If we're going to sidetrack on every fine minute
 point, we'll be forever stuck on issues like Louisiana has used
 civil law instead of common law or Judge Bea isn't likely to
 care about that kind of precedent.

If you are saying that you want to ignore the law, you are (I hope) on
the wrong forum.

   I don't have at hand the claims of Progress Software, but Saris
   clearly was informed of this issue.
 
  Hmm.  I missed that.  But in any case, is there any evidence that it
  was claimed by either party to be relevant, or formed part of Judge
  Saris's analysis in any way?
 
 Well, let's put it this way... I see stuff like this:
 http://library.findlaw.com/2003/Jun/16/132811.html
 
Progress alleged breach of contract, tortious interference with
 third-party contracts and relationships, unfair competition and
 several similar business-related torts. Progress also sought
 declaratory judgment as to its trademark rights and other rights
 relating to its sale and distribution of the MySQL software.
 
 I find it hard to believe that they'd have filed those charges if
 the only contract involved had been the GPL.

Did you miss the _trademark_ license agreement, unrelated in any way
to the license (the GPL) under which Progress claimed rights to copy,
modify, and distribute MySQL's code?

  You seem to be insisting that it was a random co-alignment of the
  stars, rather than the mundane weight of precedent, that caused Judge
  Saris to apply contract law standards to interpret the GPL and deny
  MySQL's request for preliminary injunction on a claim of breach of
  the GPL license (from MySQL's FAQ).
 
 I don't believe I've mentioned anything about co-alignment of stars.
 
 I do believe that my specific point here, which I'm guessing you're
 trying to refute, is a point which is based rather heavily on
 contract law.

If you are trying to say that some other license of copyright was
involved in any meaningful way, or that the judge did not interpret
the GPL in the GPL section of her opinion but some amalgam of the GPL
and some alternate copyright license, then you are in the astrology
zone of arrant nonsense based on the facts at hand.

  If you want to retain that illusion, I can't exactly disprove it without 
  more
  data.  Honestly though -- is it remotely plausible that she, or any judge,
  would give copyright-based license the time of day?
 
 Since I don't really know what you're talking about here, I'm not going
 to

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  While these categories are exemplary and can be bent to cover
  previously uncontemplated forms of work, judges are quite aware that
  they do so at their peril.  If you think that sister circuits'
  critiques of Rano v. Sipa Press are brutal, you should see what
  happens when an appeals court gets something wrong and it has
  significant public policy impact.  What do you think would be the
  consequences of holding that a software vendor can win a copyright
  infringement suit based on an arbitrary combination of their software
  with other independently developed stuff?
 
 I think you're talking about something different from what I'm talking
 about.  I'm talking about cases where the program as a whole
 is granted special copyright protection beyond that of its individual
 components.  (That's a literal quote from the text you were responding
 to.)

Special copyright protection on what basis?  I've discussed mise en
scene, and explained why it doesn't apply to software works that
don't contain a story.  I've given the basis on which I believe the
use of APIs as APIs renders them uncopyrightable.  I've pointed out
that the Computer Associates v. Altai
abstraction-filtration-comparison test is the law of the land, and
that, as a rule, use of one independently developed component by
another doesn't qualify as copying under that test in the absence of
true plagiarism.  Do you have any arguments left that are founded in
law and reason?

If you're just saying maybe there's a reason no one has thought of,
fine; but that's just another way of saying I fear the FSF's
unsubstantiated assertion, and I don't particularly see why Debian
should yank Quagga (or any comparable case) on those grounds.  IANADD,
IANAL, TINLA.

  The Ninth's use of precedents from the Second, and the citation from
  Nimmer, suggest that this is a principle of interpretation of
  copyright licenses that applies US-wide.  I expect that similar rules
  apply elsewhere in the world (IANALIAJ).  So we can all forget about
  termination for trivial breach, especially if it's inadvertent and
  cured at a reasonable stage in legal proceedings.
 
 Sure.  To understand this issue, it's probably worth looking at
 section 1-106 of the UCC: Basically, in breach, the point is to
 make it as if the breach had not happened.

For those reading along at home, the Uniform Commercial Code is a
model law, governing primarily the sale of goods but also some other
kinds of commercial paper such as letters of credit, adopted to a
great degree by most states in the US.  The table of contents (
http://www.law.cornell.edu/ucc/ucc.table.html ) clearly does not
include anything resembling copyright license agreements.

UCC section 1-106 may be found at
http://www.law.cornell.edu/ucc/1/1-106.html .  It is titled Remedies
to Be Liberally Administered.  It has nothing to do with standards of
breach at all, and certainly not with regard to copyright licenses,
which are addressed by federal court precedents such as those I cited
from Rano v. Sipa Press.  Indeed, the only kinds of breach said (by
the secondary sources I have skimmed) to be discussed by the UCC (I
have not read its entire text) are breaches of various forms of
warranty.

In other words, we're haring off into utter irrelevancy again, as we
did with Heritiers Huston.

 In a truly trivial breach (de minimus) court isn't going to care at
 all.

That's not what de minimis means.  De minimis means that the
amount of copied material is so small that it simply isn't copying
-- let alone infringement -- for legal purposes.

 In some breaches, the court can declare that the infringement
 was fair use (or find some other reason that the infringement
 was legal).

Are you totally clueless about the difference between breach of
contract and copyright infringement, or are you deliberately
bullshitting?  Fair use is a doctrine applied solely in evaluating
copyright infringement claims and has nothing whatsoever to do with
breach of contract.

 In minor breaches, the court could easily declare that the
 infringement constitutes a grant of license under the terms
 of the GPL by the infringing party .

No, the court could not easily declare anything of the kind.  The
remedies available for copyright infringement are set by 17 USC
chapter 5.  The only means by which a court could encourage -- not
compel -- the creation of a license that had not already been granted
would be to issue a conditional injunction of the style rendered in
Sun v. Microsoft.  In the scenario you offer, that's distribute with
source code, under GPL terms, or don't distribute at all.  It might
be possible to compel specific performance in an action for breach of
contract or under some state tort law such as unfair competition,
but not AFAICT under copyright law.

 The GPL's termination clause only would kick in where none of
 the above could

Re: RES: What makes software copyrightable anyway?

A short one for once.

http://www.rosenlaw.com/html/GPL.PDF

Mr. Rosen's much less committal than I, as befits a lawyer, and
doesn't club people with case law in a three-page summary; he's also a
much better writer.  I would think that any claim of mine that is also
addressed in his writing is not obscure.

Cheers,
- Michael

P. S.  Well, at least one person thinks Raul's credibility is intact
despite his attempted justification of a foolish gamble on OpenTTD,
and implies that he is less guilty of personal attacks than I.  Not
sure how I feel about that, unless he's thinking mostly of the things
for which I fed myself crow.

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 P. S.  Well, at least one person thinks Raul's credibility is intact
 despite his attempted justification of a foolish gamble on OpenTTD,

Or maybe he thinks that my credibility wasn't much to begin with.

You really shouldn't overgeneralize so much.  ;)

I'll probably try to respond to your other posts after a little while.
(After I've had a chance to digest them.)

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  P. S.  Well, at least one person thinks Raul's credibility is intact
  despite his attempted justification of a foolish gamble on OpenTTD,
 
 Or maybe he thinks that my credibility wasn't much to begin with.
 
 You really shouldn't overgeneralize so much.  ;)
 
 I'll probably try to respond to your other posts after a little while.
 (After I've had a chance to digest them.)

You're a good egg, Raul.  I take back every nasty thing I've ever said
about you.  And I undertake to moderate my tone for the duration,
whether or not we reach agreement on even the most basic points of
law.

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 On 5/21/05, Raul Miller [EMAIL PROTECTED] wrote:
  After looking at this for a bit, I'm thinking that Quagga is based on
  libsnmp and that libsnmp is based on libssl.
 
 Not in any copyright sense whatsoever.  And what, every Perl script is
 based on Perl?  Every Lotus 1-2-3 macro is based on Lotus?  Come
 back to Earth, please.

It's very clear that based on is the essence of what copyright 
protects in the case of derivative works, and providing 
supposed counter examples which haven't been heard in
court doesn't make that go away.

   The fact that they are independent works of authorship, gathered into
   a collection, matters.
 
  How could Quagga have been written without libsnmp?
 
  How could libsnmp have been written without libssl?
 
  [Answer: they'd each have been very different.]
 
 Idea / expression dichotomy.  Deal with it.

And I'm not saying that the ideas are copyrighted.

  I find it hard to imagine a court case about whether or not contract law
  is the only way to create a copyright license.
 
  I find it easy to imagine that a court would be only concerned about
  determining the facts about copyright license in the context of
  specific cases.
 
 This isn't a point of fact, it's a point of law, and a very, very well
 settled one.  I am done debating with you on this topic, I think.

I'm not sure you've ever understood my point.

Or perhaps, you've understood my point and dismissed it
as too obvious to be worth discussing.

Anyways, I've no objections if you want to drop this
discussion.

  Ultimately, though, what a court is typically concerned with
  in cases involving copyright claims is whether the copyright
  is being infringed (and, if it is, whether that matters, legally).
 
  Informally, it's convenient to talk about things without trying to
  mimic the exact path a court might follow ever time a new concept
  is discussed.  If we're going to sidetrack on every fine minute
  point, we'll be forever stuck on issues like Louisiana has used
  civil law instead of common law or Judge Bea isn't likely to
  care about that kind of precedent.
 
 If you are saying that you want to ignore the law, you are (I hope) on
 the wrong forum.

I think there's a lot of ground between getting bogged down in 
the little details and ignoring the law.

(Except, in a sense, getting bogged down in the little details can
be a way of ignoring the law (when the big important concepts
get neglected).)

I don't have at hand the claims of Progress Software, but Saris
clearly was informed of this issue.
  
   Hmm.  I missed that.  But in any case, is there any evidence that it
   was claimed by either party to be relevant, or formed part of Judge
   Saris's analysis in any way?
 
  Well, let's put it this way... I see stuff like this:
  http://library.findlaw.com/2003/Jun/16/132811.html
 
 Progress alleged breach of contract, tortious interference with
  third-party contracts and relationships, unfair competition and
  several similar business-related torts. Progress also sought
  declaratory judgment as to its trademark rights and other rights
  relating to its sale and distribution of the MySQL software.
 
  I find it hard to believe that they'd have filed those charges if
  the only contract involved had been the GPL.
 
 Did you miss the _trademark_ license agreement, unrelated in any way
 to the license (the GPL) under which Progress claimed rights to copy,
 modify, and distribute MySQL's code?

I think you'll agree that the crucial question here is: what license was 
granted in the agreements between Progress and MySQL?

  I do believe that my specific point here, which I'm guessing you're
  trying to refute, is a point which is based rather heavily on
  contract law.
 
 If you are trying to say that some other license of copyright was
 involved in any meaningful way, or that the judge did not interpret
 the GPL in the GPL section of her opinion but some amalgam of the GPL
 and some alternate copyright license, then you are in the astrology
 zone of arrant nonsense based on the facts at hand.

http://www.linuxjournal.com/node/6025/print

  Since I don't really know what you're talking about here, I'm not going
  to attempt to answer.
...
 I repeat -- is it remotely plausible that any judge would give
 copyright-based license the time of day, instead of treating the GPL
 as a creature of contract law (or the equivalent in systems other than
 common law)?  It's about time you stopped bullshitting and took a
 stand here.

Since I don't know what you are specifically trying to allege, I can't
offer any reasonable comments.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  I think you're talking about something different from what I'm talking
  about.  I'm talking about cases where the program as a whole
  is granted special copyright protection beyond that of its individual
  components.  (That's a literal quote from the text you were responding
  to.)
 
 Special copyright protection on what basis?  

The potential answers to that question are a detail.  The would depend
very heavily on  the context of a specific case.

If you want to limit the scope of this part of this discussion to
some limited case, I'll try to guess at what a court would think
is important.

Of course, I know you're waiting with baited breath and a
box of chocolates to hear my wonderful prognostications on 
this subject.  Either that, or you want to bludgeon me with a 
57.1 kilogram object.  I'm not really clear on which of these 
alternatives best captures this situation.

Anyways... and I hope that that attempt at humor relieves stress
rather than adds to it ... anyways, whatever it is that makes
a work be treated as original has to have some significant
element of originality to it.  Otherwise, it's a copy of something
which was created by someone else.

And I think it's safe to acknowledge that originality can take
many forms.

  In a truly trivial breach (de minimus) court isn't going to care at
  all.
 
 That's not what de minimis means.  De minimis means that the
 amount of copied material is so small that it simply isn't copying
 -- let alone infringement -- for legal purposes.

Quite right: de minimus can also apply to allegations of
infringement.

  In some breaches, the court can declare that the infringement
  was fair use (or find some other reason that the infringement
  was legal).
 
 Are you totally clueless about the difference between breach of
 contract and copyright infringement, or are you deliberately
 bullshitting?  Fair use is a doctrine applied solely in evaluating
 copyright infringement claims and has nothing whatsoever to do with
 breach of contract.

I was referring to hypothetical infringement which might occur 
with some license termination in the context of contract breach.

  In minor breaches, the court could easily declare that the
  infringement constitutes a grant of license under the terms
  of the GPL by the infringing party .
 
 No, the court could not easily declare anything of the kind.  The
 remedies available for copyright infringement are set by 17 USC
 chapter 5. 

I thought you were interested in discussing the GPL using
contract law as a basis?  In that case, it's entirely possible
that the court could rule on the basis of estoppel or some
other such legal mechanism.

 The only means by which a court could encourage -- not
 compel -- the creation of a license that had not already been granted
 would be to issue a conditional injunction of the style rendered in
 Sun v. Microsoft.  In the scenario you offer, that's distribute with
 source code, under GPL terms, or don't distribute at all.  It might
 be possible to compel specific performance in an action for breach of
 contract or under some state tort law such as unfair competition,
 but not AFAICT under copyright law.

I was imagining, here, a case where the conflicting code would be 
licensed under some terms which were nearly GPL compatible,
and where the licensor of that conflicting code made an issue out 
of it.

  The GPL's termination clause only would kick in where none of
  the above could hold -- and I think we can agree that that would
  not be a trivial breach.
 
 You're standing the law on its head.  Termination of a copyright
 license for breach, per Rano and op. cit., can only be done if the
 breach is of so material and substantial a nature
 that [it] affect[s] the very essence of the contract and serve[s] to
 defeat the object of the parties.  It is inconceivable to me that
 I_WANT_OPENSSL could meet this standard.

For that to fit, in this context, you'd have to have Quagga incorporating 
some significant work of some other GPLed project and you'd have
to have some legal trouble from the (rather silly, in my opinion) trademark
promoting requirements in the libssl contract.  Further, the copyright
holders on libssl would have to be a party in this legal action.

Anyways,  I think we can agree that if GPL license termination kicks
in we're not talking about a trivial breach.

   As for termination at will -- I doubt that any court in any
   jurisdiction would permit such a thing with respect to the GPL, but
   there is certainly room for a tactical choice of law and venue there.
   That's why sane people write choice of law provisions (not
   necessarily choice of venue, which is controversial, and often
   ignored in forum non conveniens proceedings) into their licensing
   agreements, not to mention explicit term and termination clauses.
   The GPL, again pretending not to be a creature of contract law, omits
   them, to the great

Re: RES: What makes software copyrightable anyway?

On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
On 5/21/05, Raul Miller [EMAIL PROTECTED] wrote:
On 5/21/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
Not in any copyright sense whatsoever. And what, every Perl script is
based on Perl? Every Lotus 1-2-3 macro is based on Lotus? Come
back to Earth, please.

It's very clear that based on is the essence of what copyright
protects in the case of derivative works, and providing
supposed counter examples which haven't been heard in
court doesn't make that go away.

Lotus, actually, has been heard in court. Remember Lotus v. Borland?
The macro language in 1-2-3 was held to be uncopyrightable, as was the
menu interface with which it was fairly closely interlocked. (Held at
appellate level, affirmed by an evenly divided Court, so no opinion at
Supreme Court level.) A large fraction of the discussion in the
Supreme Court oral argument was about users' existing spreadsheets
that used the 1-2-3 macro language -- otherwise known as its external
API -- and how Lotus ought not to permitted to leverage the copyright
monopoly in order to lock those users into its implementation of that
API, whether or not they originated it. If it were correct to call
all of those spreadsheets derivative works of 1-2-3, then they
certainly would have that leverage.

The court decision isn't really phrased that way.

As I read it, it's saying unoriginal elements can't be copyrighted, and
that the system in question was unoriginal.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=11thnavby=caseno=945262opa

This doesn't say that all computer languages are unoriginal -- though
clearly it does say that some of them are.

You can't just pull some common sense usage of based on out of a hat
and say that's what consitutes a derivative work. The vast
preponderance of case law is against you here, based on the cases I've
read (many of which I've cited). Have you any counterexamples to
offer in which a program was held to be a derivative work of the
language in which it was written, an API which it called, or an engine
on which it ran -- except via a mise en scene doctrine with regard
to a story-type work?

Kohus vs. JVM is a case where functional means uncopyrightable was
insufficient, and where it's up to district court to decide on the
relevance of expert testimony.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=searchcase=/data2/circs/6th/03a0150p.html

DSC v Pulse seems to indicate that when there are significant limitations
encumbering some work that 17 USC 117 and 17 USC 109 might not
apply. (Granted: whether this would be applicable to the GPL has
not yet been granted -- but it could be argued that possession of
a copy of a GPLed program does not constitute ownership. Sections
4 and 6 of the GPL are examples of clauses which would reinforce
this point of view.) (Granted, libssl does not impose this kind of
restriction, and thus works based on it are not protected in this
fashion.)

http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=fed/981024.html

ADA vs. Delta Dental seems to indicate that a work doesn't have to be
very original to receive protection, even (perhaps especially) in the
case of computer programs

http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=7th/964140.html

Is that enough to entertain the possibility that a computer programming
language might be subject to copyright protection, and that this might
be a significant issue in the context of the GPL?

I think there's a lot of ground between getting bogged down in
the little details and ignoring the law.

(Except, in a sense, getting bogged down in the little details can
be a way of ignoring the law (when the big important concepts
get neglected).)

I am not feeling particularly bogged down, myself. The truth is in
the details, along with the devil; and the law, especially in
common-law countries, is composed almost entirely of details. In this
discussion, the differences between breach of contract and copyright
infringement, between scope of license and the complete agreement,
and especially between derivative and collective works matter a great
deal. They are, in fact, the big important concepts.

Ok... does that mean we need to go into issues like the use of civil
law instead of common law (given that you've raised common law
as important at some point along the line)?

Did you miss the _trademark_ license agreement, unrelated in any way
to the license (the GPL) under which Progress claimed rights to copy,
modify, and distribute MySQL's code?

I think you'll agree that the crucial question here is: what license was
granted in the agreements between Progress and MySQL?

I hope you'll read Progress Software v. MySQL again and agree that the
crucial fact is that the claims with respect to the trademark license
and with respect to the GPL were considered quite separately, and

Re: RES: What makes software copyrightable anyway?

On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
 On Thu, May 19, 2005 at 07:38:18PM -0400, Raul Miller wrote:
  Which can occur if anyone redistributes any of the I_WANT_OPENSSL
  debian packages.
 
 According to you.  If, for the sake of argument, we assume that such
 binaries are undistributable, Debian is still not affected, since we
 aren't contributing to their distribution, only their creation.

In some senses you're right.

The README.Debian clearly documents how to use this in conjunction 
with apt-get -b source -- and this probably does count as contributing
towards their creation.

But is the distinction between contributing to their creation and
contributing towards their distribution a strong distinction?  After
all, we've provided a number of other rather strong contributions
towards distribution in general -- it might be hard to argue that
those contributions are irrelevant here.

On the other hand, if the copyright holder supplied the 
I_WANT_OPENSSL option, then that copyright holder probably 
can't hold us in violation of the license.  Only if code has been 
incorporated from other projects would this seem to be a serious 
problem.  Basically, I think that the violation has to be downstream 
from someone who has significant copyright for it to be a serious
issue.

Thanks,

-- 
Raul

Re: RES: What makes software copyrightable anyway?

Raul Miller wrote:
But we're doing more than distributing the tarball.  The tarballs we're
distributing have been modified so that the user need only type a
couple commands, and (using software we've provided) the 
binaries are reconstituted on their machine.
So what? First off, the GPL gives us permission --- under section 2 --- 
to make and distribute that tarball. The user has permission to run 
those several commands under GPL 0.

The only thing that the user doesn't have permission to do is distribute 
the resulting binary.

The end result is that we have taken steps to make the binaries appear
on the user's machine, so we have some responsibility for that result.
While that may be the end result, we have not distributed that binary, 
which is the only relevant thing the GPL doesn't let us do.

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Re: RES: What makes software copyrightable anyway?

2005-05-20 Thread Michael K. Edwards

On 5/20/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/20/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  On 5/19/05, Raul Miller [EMAIL PROTECTED] wrote:
   But the ambiguities have to be valid ambiguities.
  
   That's where we seem to differ on this issue.
 
  I think there is little question that the work based on the Program
  definition + erroneous paraphrase in Section 0 is either:  1) a valid
  ambiguity (to be construed against the offeror on the licensee's
  request), or 2) unambiguously readable only as derivative work under
  copyright law, because the paraphrase is so weakly attached as to be
  an implausible candidate for a definition even if the licensee wanted
  it that way.  Perhaps you would now agree to this either/or, without
  any implications for whether my reading of the phrase derivative work
  under copyright law is correct?
 
 I'm going to tackle this in two pieces.  First I'm going to critique
 your presentation, then I'm going to try to tackle the issues I
 think you're raising.  Be warned that I may have misunderstood
 you.

The paragraph I wrote was somewhat cryptic, and I think you did
misunderstand a little.  Once more unto the breach:

Stipulate, for the moment, that either the Program or any derivative
work under copyright law (candidate E) and a work containing the
Program or a portion of it, either verbatim or with modifications
and/or translated into another language (candidate C) are not
obviously equivalent.

Under contract law, it is necessary to construe a single definition
for the clearly delimited phrase work based on the Program -- a
phrase with no a priori legal meaning -- out of the text of section 0
as written, along with any other evidence that may be demonstrated to
reflect a binding intention on the licensee's part.  This construction
must, as a matter of (common law) principle, be done against the
offeror -- i. e., by choosing, from among the plausible readings of
the text, the one least favorable to the offeror's position in the
case at hand.

Personally, I think that candidate C is so weakly attached
grammatically as to be not plausible as a replacement for the
definition given by candidate E.  But suppose one were to call this a
significant ambiguity in the text.

At this point, and only at this point, do we need to bring in the
actual meaning of derivative work under copyright law, as discussed
elsewhere.  As I read it, candidate E is still the correct
construction.  That's because it is less favorable to the offeror, as
it draws narrower bounds on which works based on the Program have to
be offered entirely on GPL terms.  In this construction, the licensee
does need to provide a theory under which the he is granted permission
to create and distribute collections (with or without a selection
criterion that raises them to the level of collective works) that
contain a work based on the Program; this is addressed below.

Is that better?

 Presentation:  Logically, you seem to have assumed that the clause
 in question is erroneous, and you draw conclusions from this
 assumption.  In other words, but your conclusions seem to be
 don't seem to add much to your initial assumption.

I was attempting to use the phrase erroneous paraphrase just as a
name for candidate C above.  As stated more clearly above, the notion
that it is erroneous doesn't enter into the logic until you try to
resolve the ambiguity against the offeror.

 Issues: As near as I can tell, section 0 of the GPL establishes what
 is being licensed by the GPL.  To my knowledge, no works which are
 not explicitly recognized in section 0 are being licensed.  Section 0
 also seems to establish the scope of the license -- which is something
 you've expressed strong interest in.  Other sections which grant
 permissions explicitly do so under the terms of this license which
 includes section 0, or under the terms of section 1 (which refers
 to the Program of section 0), or of section 2 (which must be
 under the terms of section 1).

The question being asked in scope of license analysis is, what
rights reserved to the copyright holder, as defined in 17 USC, are
being made available for exercise by the licensee, whatever the return
consideration may be?  In the case of the GPL, the licensed rights
include copying and distributing the Program itself; modifying,
adapting, translating or otherwise creating a work based on the
Program, and copying and distributing the result; and aggregating a
work based on the Program with other material and copying and
distributing the result.

In another license, the scope might be as narrow as translate
alternate pages into French and German and publish the result on
Post-It (TM) Notes; but as long as you pet a cat on alternate
Tuesdays isn't part of the scope of license even if it's the first
clause in the agreement text.  As long as you [do anything] is
contract law stuff, even if [do anything] logically requires exercise
of the rights under copyright that are being

Re: RES: What makes software copyrightable anyway?

Raul Miller wrote:
Which can occur if anyone redistributes any of the I_WANT_OPENSSL
debian packages.
No, most likely even that would be fine. Since Debian packages are 
intended to be used with Debian, and Debian ships OpenSSL, third parties 
get to use the GPL's exception for things distributed with the operating 
system. [Debian, of course, can't use this because it doesn't apply if 
the binary is distributed with those things].

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Re: RES: What makes software copyrightable anyway?

Michael K. Edwards wrote:
But note that in principle the
creation of derivative works can be infringement even if they are not
distributed, and I haven't dug through case law to see exactly how far
17 USC 117 can be stretched from run-time use to local builds.
Thankfully, you need not do so; GPL (2) give permission to make 
derivative works. As long as you don't distribute or publish the work 
(which is the case here), you need only (1) make notes on files you 
modified; (2) the thing with spewing the GPL notice for interactive 
programs.

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Re: RES: What makes software copyrightable anyway?

Raul Miller wrote:
That works only if they don't distribute libssl with it.
Sure. Same as for Debian. If you distributing software, open source or 
not, you need to read and follow the license.

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Re: RES: What makes software copyrightable anyway?

On 5/20/05, Anthony DeRobertis [EMAIL PROTECTED] wrote:
 GPL 1, 2, and 3 apply to distributions in object or executable form.
 GPL 1 and 2 apply to distributions in source code form. The GPL has
 *clearly* and *intentionally* placed additional restrictions (given in
 section 3) on binary distribution.

Sure.

But distribution and bits on the wire aren't equivalent.

 That is why whether we distribute in source or object for matters,
 because the FSF made it so when they drafted the GPL. This is not some
 trivial technical workaround trying to exploit a arcane loophole in the
 license; it is a difference that --- judging from the license, the
 preamble, and the position statements on fsf.org --- the FSF considers
 extremely important.
 
 BTW: Most piece of modern, open-source software I've seen comes with a
 few simple commands to build and install a binary; they typically are
 ./configure; make or just make. Are you arguing they are effectively
 distributing a binary, too?

As a general rule, those commands don't go figuring out where to
get the sources and download them for you.  Nor are they specially
documented in the distributor's notes on the package.

Anyways, as long as the I_WANT_OPENSSL is something that's
considered valid all the way upstream for all the GPLed code, I 
don't think this is a problem -- it's just yet another case of someone
not licesning things the way they wanted to license them.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/20/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 Stipulate, for the moment, that either the Program or any derivative
 work under copyright law (candidate E) and a work containing the
 Program or a portion of it, either verbatim or with modifications
 and/or translated into another language (candidate C) are not
 obviously equivalent.

Ok.

 Under contract law, it is necessary to construe a single definition
 for the clearly delimited phrase work based on the Program -- a
 phrase with no a priori legal meaning -- out of the text of section 0
 as written, along with any other evidence that may be demonstrated to
 reflect a binding intention on the licensee's part.  This construction
 must, as a matter of (common law) principle, be done against the
 offeror -- i. e., by choosing, from among the plausible readings of
 the text, the one least favorable to the offeror's position in the
 case at hand.

Ok.

 Personally, I think that candidate C is so weakly attached
 grammatically as to be not plausible as a replacement for the
 definition given by candidate E.  But suppose one were to call this a
 significant ambiguity in the text.

Ok.

 At this point, and only at this point, do we need to bring in the
 actual meaning of derivative work under copyright law, as discussed
 elsewhere.  As I read it, candidate E is still the correct
 construction.  That's because it is less favorable to the offeror, as
 it draws narrower bounds on which works based on the Program have to
 be offered entirely on GPL terms.  In this construction, the licensee
 does need to provide a theory under which the he is granted permission
 to create and distribute collections (with or without a selection
 criterion that raises them to the level of collective works) that
 contain a work based on the Program; this is addressed below.
 
 Is that better?

Yes.

I think it's important to note that narrower bounds on the license are
not necessarily less favorable to the offeror.  If you're willing to agree
with me on that point, I'm happy.

  Presentation:  Logically, you seem to have assumed that the clause
  in question is erroneous, and you draw conclusions from this
  assumption.  In other words, but your conclusions seem to be
  don't seem to add much to your initial assumption.
 
 I was attempting to use the phrase erroneous paraphrase just as a
 name for candidate C above.  As stated more clearly above, the notion
 that it is erroneous doesn't enter into the logic until you try to
 resolve the ambiguity against the offeror.

And even there that erroneous character is contextual.

I could imagine (for example in a dual-license contract) that the licensee
might prefer the broader interpretation -- for that case, the narrower
interpretation would be erroneous.

  Issues: As near as I can tell, section 0 of the GPL establishes what
  is being licensed by the GPL.  To my knowledge, no works which are
  not explicitly recognized in section 0 are being licensed.  Section 0
  also seems to establish the scope of the license -- which is something
  you've expressed strong interest in.  Other sections which grant
  permissions explicitly do so under the terms of this license which
  includes section 0, or under the terms of section 1 (which refers
  to the Program of section 0), or of section 2 (which must be
  under the terms of section 1).
 
 The question being asked in scope of license analysis is, what
 rights reserved to the copyright holder, as defined in 17 USC, are
 being made available for exercise by the licensee, whatever the return
 consideration may be?  In the case of the GPL, the licensed rights
 include copying and distributing the Program itself; modifying,
 adapting, translating or otherwise creating a work based on the
 Program, and copying and distributing the result; and aggregating a
 work based on the Program with other material and copying and
 distributing the result.

As near as I can tell, those rights are somewhat limited in the context 
of modification.

You seem to be trying to imply that conditions are to be ignored when
construing the scope of the license.  But I don't think that's legally
valid -- I've certainly not seen anything that would support that 
implication.  And, I've seen legal language (for example the concept
of narrow scope) which implies the opposite.

 In another license, the scope might be as narrow as translate
 alternate pages into French and German and publish the result on
 Post-It (TM) Notes; but as long as you pet a cat on alternate
 Tuesdays isn't part of the scope of license even if it's the first
 clause in the agreement text.  As long as you [do anything] is
 contract law stuff, even if [do anything] logically requires exercise
 of the rights under copyright that are being offered to you.

Except... I think you've left out a lot of the narrowness of the GPL.

 I think that there's really no question, no matter which path you take
 to construe aggregation, that it includes both the

Re: RES: What makes software copyrightable anyway?

2005-05-20 Thread Michael K. Edwards

Another long one, because I'm trying to get to the bottom of this
scope of license business.

On 5/20/05, Raul Miller [EMAIL PROTECTED] wrote:
[snip agreement, about which I am very happy]
 I think it's important to note that narrower bounds on the license are
 not necessarily less favorable to the offeror.  If you're willing to agree
 with me on that point, I'm happy.

Sure.  But I'm not talking about narrower bounds on the set of rights
offered with respect to the Program (which is the extant work on which
there exist licensable rights).  I'm talking about narrower bounds on
the definition of work based on the Program, which leaves room to
construe the appropriate permissions for anthologies /
buckets-of-works based on the rest of the contract.

  I was attempting to use the phrase erroneous paraphrase just as a
  name for candidate C above.  As stated more clearly above, the notion
  that it is erroneous doesn't enter into the logic until you try to
  resolve the ambiguity against the offeror.
 
 And even there that erroneous character is contextual.
 
 I could imagine (for example in a dual-license contract) that the licensee
 might prefer the broader interpretation -- for that case, the narrower
 interpretation would be erroneous.

As a paraphrase of candidate E, it's erroneous.  The grammar, as I
read it, doesn't allow it to be anything else.  But a licensee is
certainly welcome to argue for the presence of an ambiguity there if
they have some reason to prefer candidate C.

  The question being asked in scope of license analysis is, what
  rights reserved to the copyright holder, as defined in 17 USC, are
  being made available for exercise by the licensee, whatever the return
  consideration may be?  In the case of the GPL, the licensed rights
  include copying and distributing the Program itself; modifying,
  adapting, translating or otherwise creating a work based on the
  Program, and copying and distributing the result; and aggregating a
  work based on the Program with other material and copying and
  distributing the result.
 
 As near as I can tell, those rights are somewhat limited in the context
 of modification.
 
 You seem to be trying to imply that conditions are to be ignored when
 construing the scope of the license.  But I don't think that's legally
 valid -- I've certainly not seen anything that would support that
 implication.  And, I've seen legal language (for example the concept
 of narrow scope) which implies the opposite.

It's possible that you're right; however, the only evidence for this
that I have found is internal to the district court's order denying
Sun's copyright infringement claims on remand, and the outcome would
have been the same either way, so it's not much of a precedent.  Long
version below.  Note that the only consequence would be that some
claims might be upgraded from breach of contract to copyright
infringement (and thus an easier standard for preliminary injunction);
all of the rules of construction still apply.

My empirical understanding up until now from reading appellate case
law (IANAL) is that limitations on how, when, where, and by whom
copies (translations, etc.) may be made, and how many and in what form
or medium, are all part of the scope of license.  Ditto the nature and
degree of adaptation, translation, aggregation, etc.  Questions of
form seem to be particularly subject to judicial construction as to
the parties' intent:  see Boosey  Hawkes v. Walt Disney (
http://laws.findlaw.com/2nd/969205v2.html ) and op. cit.

But the appellate record suggests that nothing other than the exercise
of rights reserved to the copyright holder under 17 USC is relevant to
this analysis, and obligations of return performance are to be ignored
-- and the whole you must offer source code on demand bit is
indisputably an obligation of return performance.  Fail to satisfy it,
and you may be in breach of contract, but you can't be successfully
sued for copyright infringement unless the contract is first ruled to
have been properly terminated.

I'm now questioning part of this understanding, based on the Sun v.
Microsoft district court's ruling on remand (
http://java.sun.com/lawsuit/012400motionfeds.html ) with regard to the
scope of license contained in the TLDA.  That opinion uses
California law to justify reviewing the entire TLDA for evidence of
scope of license.  Its ruling against Sun relies on the absence of
language in the TLDA about the license grants being subject to,
conditional on, or limited by compliance with the compatibility
obligations in the disputed section.

The district court's approach to distinguishing between contractual
covenants and restrictions on the license grants does not appear
correct to me, given that all of the appellate judgments I have found
that reference SOS v. Payday seem to implicitly use logic similar to
mine above.  It is worth noting that this is the same district court
that was previously overruled for failing to

Re: RES: What makes software copyrightable anyway?

(Note, I might come back to some of this later -- I need to
think about whether I want to bother raising some issues, among
other things --, but a few of these I have immediate questions or 
comments about.)

On 5/20/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  There is some question about whether Quagga+Net SNMP+libssl
  is uncopyrightable.
 
 No, there isn't.  There's no selection and arrangement creative
 expression there.  It's silly to say that some third party could
 obtain a copyright on combining those things and enforce it on the
 Quagga copyright holders themselves.  Copyright doesn't protect ideas,
 it protects expression; and this is a doctrine of merger instance if
 I ever saw one.

Are you saying I could just as well select, say, libperl, apache, and
mysqld and expect them to be just as satisfactory' when combined with
Quagga?

Or are you saying that since the authors of Quagga already made
that selection that no one else has to?

   1. a.  Official or legal permission to do or own a specified thing.
 
 Feeble.  Get a real dictionary.  

Findlaw's legal dictionary says:

   1 a: a right or permission granted by a competent authority (as of
   a government or a business) to engage in some business or
   occupation, do some act, or engage in some transaction which
   would be unlawful without such right or permission

Better?

 The non-GPL license option to MySQL had no relevance to that case
 whatsoever.  It was not claimed by Progress Software, it is not
 mentioned in the opinion or in Eben Moglen's affidavit, and as far as
 I can tell the judge may not even have known that existed.  Unless you
 have some piece of the court record that I don't yet -- in which case,
 pony up -- this is a lame bit of misdirection.

I'll quote the beginning of point 30 of that affidavit for you:

   MySQL AB engages in ``dual licensing.'' This means that it licenses 
   a version of MySQL to be freely used, copied, modified and 
   distributed by everyone under the GPL, and also makes versions 
   of its program that are distributed to particular customers without 
   the right of free distribution.

I don't have at hand the claims of Progress Software, but Saris
clearly was informed of this issue.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/20/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 As a paraphrase of candidate E, it's erroneous.  The grammar, as I
 read it, doesn't allow it to be anything else.  But a licensee is
 certainly welcome to argue for the presence of an ambiguity there if
 they have some reason to prefer candidate C.

One other observation here:

It's entirely possible that a court would not find this phrasing
ambiguous.

Here's the full text of the definition of derivative work from
17 USC 101:

   A derivative work is a work based upon one or more preexisting 
   works, such as a translation, musical arrangement, dramatization, 
   fictionalization, motion picture version, sound recording, art reproduction, 
   abridgment, condensation, or any other form in which a work may be 
   recast, transformed, or adapted. A work consisting of editorial revisions, 
   annotations, elaborations, or other modifications which, as a whole,
   represent an original work of authorship, is a derivative work.

I believe that we've established that for a work to be not a derivative
work that it's not sufficient to show that it's a collective work.

And, some of those possibilities -- elaborations, annotations,  adapted,
recast, etc. as well as the bit about based upon one or more preexisting 
works  all seem to point at the idea that if a computer program as a
whole is to be granted special copyright protection beyond that of
its individual components that it is a derivative work of those components.

And I think we can agree that, at least within the U.S., this definition
is a part of copyright law.

[On the flip side, if it can be shown in court that there's some criteria under
which all programs are free of copyright law, that's probably a good thing
for the free software community.]

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On Thu, May 19, 2005 at 12:09:12AM -0400, Raul Miller wrote:
 On 5/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
   Logically, the process used here is more complex than that used by
   gunzip, but effect is similar.
  
  If nothing else, 17 USC 117 and dynamic linking absolutely protect you
  from this theory of infringement in the US.  Many jurisdictions are
  said to have equivalents.  IANAL, etc.
 
 This absolute protection did not seem to protect Napster, nor did
 the home recording act.

Despite their claims to the contrary, Napster's *primary function* was to 
facilitate the illegal distribution of copyrighted materials.  That is
clearly not the case with Debian.

--Adam


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Re: RES: What makes software copyrightable anyway?

On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
  This absolute protection did not seem to protect Napster, nor did
  the home recording act.
 
 Despite their claims to the contrary, Napster's *primary function* was to
 facilitate the illegal distribution of copyrighted materials.  That is
 clearly not the case with Debian.

Ok, here's what I'm thinking:

First off, is Quagga + libsnmp + libssl a work which is subject
to copyright protection in and of itself?  If not, there's no
problems under copyright law in distributing this work.

I think that this is subject to copyright protection -- this
work has unique characteristics which mean it isn't just some
random collection of bits.  Someone had to carefully select
these pieces to make routing software which performs properly.
The work which had to go into that selection process means
that this is a collective work, and is subject to copyright
protection.

Once again, if I'm wrong on this point, there is no need to
worry about the GPL.

Next question: why do we need to worry about the GPL if this
is the case?

The answer is that copyright law (which is the basis for all
non-free software) says that you need a license to distribute
a copyrighted work.  In the case of a collective work, you
also need permission on each of the components to distribute
the work as a whole.

So this question can be rephrased: does the GPL grant permission
to distribute this collective work?  I think the answer is:
yes it does, but it puts some conditions on that distribution.
M.K.Edwards has argued that these conditions do not apply.
His argument seems to be that because no one has every done any
modifications to this work as a whole, section 0 doesn't apply
(which seems to me to mean that we wouldn't have permission
at all from the GPL) and that the mere aggregation clause
does apply (though how it applies when section 0 does not is
beyond me).

M.K.Edwards has also indicated that the Progress v.  MySQL case
is precedent which shows that the above don't matter, but since
the judge didn't specifically address any of the conditions
which I'm thinking are important, I'm thinking that MySQL did
not contend that those were violated.  More specifically, you'd
need to establish that each of the terms 0 through 6 apply to
the case, and assert that 4 is violated.  You might need to
show more than that (for example, being a contract case, you'd
have to show how valuable contributions of the community are,
and how much value you're losing on a section 4 violation).
I'm not a lawyer, and I'm not preparing a legal case here --
I'm only trying to rather broadly characterize the issues.

I'm going to ignore that rat hole for now and continue...
The next question is: Are we distributing this copyrighted
work?

I think we are.  We're distributing:

The unmodified sources
The modified sources
The binaries without libssl
The binaries with libssl

These are packed efficiently, but by issuing slightly different
commands you can get each of these.  The distribution of
any one of these does not mean that we're not distributing
the others.  The rather clever mechanisms we're using to
efficiently distribute these don't really matter, either.
The fact that a lot of people worked together on this doesn't
really make a difference.  The fact that the first three use
a different set of programs to unpack than the last doesn't
really make a difference -- not when we've been so careful to
make sure that the last works.

The dynamic linking issue doesn't seem to matter at all --
the collective work still exists.  We've still modified that
collective work so that we can distribute both binaries which
include libssl and binaries which do not.  Dynamic linking is
just a way of putting different parts of a work in different
files, which allows some editorial changes on one file without
having to re-create the others.

So, anyways, that's what I think we're doing which is somewhat
analogous to what Napster was doing.

Napster, by the way, was enabling people to make recordings
of music at home.  There was law on the books (the home audio
recording act) which seemed to say that these activities were
perfectly legal.  Court ruled that they were not.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On Thu, May 19, 2005 at 07:16:10AM -0400, Raul Miller wrote:
 On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
   This absolute protection did not seem to protect Napster, nor did
   the home recording act.
  
  Despite their claims to the contrary, Napster's *primary function* was to
  facilitate the illegal distribution of copyrighted materials.  That is
  clearly not the case with Debian.
 
 Ok, here's what I'm thinking:
 
 First off...

[huge diatribe snipped]

I already told you I'm not getting into this with you.  You seem to like to
change the subject when anyone makes a point you don't want to address.
You're also still trying to make all of the same points you were making the
last time I posted, which means you're not really listening to anyone who's
trying to explain things to you.

 Napster, by the way, was enabling people to make recordings
 of music at home.  There was law on the books (the home audio
 recording act) which seemed to say that these activities were
 perfectly legal.  Court ruled that they were not.

No matter what the court ruled about Napster's CD ripping/copying ability,
that's not what they originally got in trouble for.  They got in trouble for
making it easy for people to trade MP3's, by maintaining a repository of
illegal music download locations.

Debian isn't Napster.  It's not even close.  Stop comparing Debian to
Napster.

--Adam

-- 
Adam McKenna  [EMAIL PROTECTED]  [EMAIL PROTECTED]


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Re: RES: What makes software copyrightable anyway?

On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
 No matter what the court ruled about Napster's CD ripping/copying ability,
 that's not what they originally got in trouble for.  They got in trouble for
 making it easy for people to trade MP3's, by maintaining a repository of
 illegal music download locations.
 
 Debian isn't Napster.  It's not even close.  Stop comparing Debian to
 Napster.

I'm not saying that Debian is Napster.

I'm saying that we both have to follow the same kinds of laws.

If Debian is not doing anything illegal, then of course Debian
is not going to run afoul of these laws.  But the assumption
that we're not doing anything illegal can't be used to prove
that we're not doing anything illegal.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On Thu, May 19, 2005 at 02:11:56PM -0400, Raul Miller wrote:
 I'm not saying that Debian is Napster.

You have made a direct comparison between Debian making it easy for a user
to build an OpenSSL-linked Quagga, and Napster's *flagrant* facilitation of 
copyright infringement.

 I'm saying that we both have to follow the same kinds of laws.

 If Debian is not doing anything illegal, then of course Debian
 is not going to run afoul of these laws.  But the assumption
 that we're not doing anything illegal can't be used to prove
 that we're not doing anything illegal.

You seem to be the only one who thinks that Debian is doing something
illegal.

--Adam


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Re: RES: What makes software copyrightable anyway?

On 5/18/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
   Logically, the process used here is more complex than that used by
   gunzip, but effect is similar.
 
  If nothing else, 17 USC 117 and dynamic linking absolutely protect you
  from this theory of infringement in the US.  Many jurisdictions are
  said to have equivalents.  IANAL, etc.
 
 This absolute protection did not seem to protect Napster, nor did
 the home recording act.

Here's the relevant text from 17 USC 117:

(a)  Making of Additional Copy or Adaptation by Owner of Copy.
Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to make or
authorize the making of another copy or adaptation of that computer
program provided:
(1) that such a new copy or adaptation is created as an essential step
in the utilization of the computer program in conjunction with a
machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and
that all archival copies are destroyed in the event that continued
possession of the computer program should cease to be rightful.

This obviously has nothing whatsoever to do with the facts of Napster,
and everything to do with the adaptation that happens during
run-time resolution of dynamic linking references.

In any case, it is to be supposed that you are referring to the
district court opinion affirmed by the Ninth Circuit in AM Records et
al. v. Napster 2001 (
http://caselaw.lp.findlaw.com/data2/circs/9th/0016401.html ).  While I
am not interested in redacting this opinion at the moment, I recommend
it to all readers as an example of exactly how the theory of vicarious
or contributory liability is applied with respect to copyright
infringement.  IANAL, etc.

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
 You have made a direct comparison between Debian making it easy for a user
 to build an OpenSSL-linked Quagga, and Napster's *flagrant* facilitation of
 copyright infringement.

Yes.  Note that there was a senator who thought that the laws which had
passed should have made Napster immune to prosecution.  So your
use of flagrant in quotes seems appropriate.

 You seem to be the only one who thinks that Debian is doing something
 illegal.

I'm probably the only one (at least among those posting) who is thinking
of distribution as a legal issue rather than a technical issue.

I will point out, however, that if no one prosecutes us, we don't have
to worry about the legality of this issue.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On Thu, May 19, 2005 at 04:29:09PM -0400, Raul Miller wrote:
 On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
  You have made a direct comparison between Debian making it easy for a user
  to build an OpenSSL-linked Quagga, and Napster's *flagrant* facilitation of
  copyright infringement.
 
 Yes.

In that case, my original assessment stands.  You are either trolling or
delusional.

--Adam


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Re: RES: What makes software copyrightable anyway?

On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
 On Thu, May 19, 2005 at 04:29:09PM -0400, Raul Miller wrote:
  On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
   You have made a direct comparison between Debian making it easy for a user
   to build an OpenSSL-linked Quagga, and Napster's *flagrant* facilitation 
   of
   copyright infringement.
 
  Yes.
 
 In that case, my original assessment stands.  You are either trolling or
 delusional.

You failed to quote the bit about how what Napster was doing wasn't 
supposed to be illegal.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On Thu, May 19, 2005 at 04:54:20PM -0400, Raul Miller wrote:
 You failed to quote the bit about how what Napster was doing wasn't 
 supposed to be illegal.

That bit would only be relevant if Debian was doing the things that got
Napster in trouble.  We aren't.

--Adam


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Re: RES: What makes software copyrightable anyway?

On Thu, May 19, 2005 at 05:18:19PM -0400, Raul Miller wrote:
 On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
  That bit would only be relevant if Debian was doing the things that got
  Napster in trouble.  We aren't.
 
 Or if we're doing similar things.
 
 Such as: making available copyrighted works which we do not have
 the right to distribute.
 
 Though, once again: if nobody takes us to court about this we'll
 not have to face legal liability for it.  [But we will be violating the
 DFSG.]

And once again, you're the only one who thinks we're doing this.  The rest of
us, as far as I can tell, think that giving a user a script that makes it 
easier to compile a certain binary does not equate to distribution of the 
same binary.

If it was, then the upstream would be as guilty as we are, since he
presumably includes a configre script with --with-ssl as one of its options.

--Adam


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Re: RES: What makes software copyrightable anyway?

On 5/19/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
   This scope of license construction does not involve any fine
   judgments about whether the licensee's return performance is up to
   snuff.
 
  If the GPL is an offer of contract, the only remedy explicitly included
  in the agreement is termination of all rights.  Which means that
  the licensee's return performance is very much at issue.
 
 At issue in a breach of contract claim.  Not in a claim of copyright
 infringement -- not unless and until it is proven that the contract
 was justly terminated for material breach. 

Sure, someone who isn't violating the GPL isn't a problem.

   You don't have to believe me on this, you can
   read SOS v. Payday yourself, and see how it was applied in Sun v.
   Microsoft.
 
  That did not involve the GPL.  You have not established the
  parallel.
 
 Do you not understand the distinction between issues of fact and of
 law?  What is so hard about applying the concept of scope of
 license, as articulated in those cases, to find the portions of the
 GPL (once construed in some particular way by a court of fact) that
 constitute scope of license?

Ultimately, scope of license wasn't the issue.  Expectation of
continuing harm was.

Quite literally: the court didn't address the scope of
license issue.

  Why not just use a phrase that indicates the particular flavor of
  meaning you're after.  For example The copyright grant licensed
  under the GPL?
 
  You don't have to redefine GPL to accomplish what you seem to
  want to accomplish.
 
 Sorry, Raul, but using the word license in the title doesn't make
 all of its terms and conditions suddenly become part of the scope of
 license analysis.  That's the argument that I was trying to preempt,
 to save wear and tear on everyone's in-boxes (or killfiles, as the
 case may be).  Oh well; it was worth a try, anyway.

You do not need to redefine GPL to accomplish what you seem to 
want to accomplish.

If I read you right, you think that my citation of this case involving
colorization was presented as something more than an example of a case
based on something other than contract law.
  
   You keep asserting that the GPL is not a contract, apparently
   meaning that principles of contract law in a given jurisdiction
   shouldn't be used to construe its legal meaning.
 
  Actually, I'm saying that in recognition that contract law is applicable.
 
  The contract is going to include the GPL plus whatever additional
  terms are supplied by law.
 
 Did I read this right?  Are you actually acknowledging that the GPL is
 a creature of contract law?  If so, I am in complete agreement with
 this last statement, as long as you recognize that (under US law,
 anyway) ambiguities in the text of the GPL must be construed against
 the offeror in the absence of clear evidence that the licensee read
 them in the offeror's favor at the time that the contract was
 accepted.

I'm not really interested in classifying the GPL as a creature.

I do agree that copyright cases in the U.S. are routinely analyzed 
using contract law.

I'm not going to touch your ambiguity argument, because I think
you have some severe misunderstandings about what constitutes
a legally relevant ambiguity.  However, to avoid argument, I'll
agree that there are cases where ambiguity is construed in
favor of the licensee.

  So, given your concluding statement there, what is the misunderstanding
  which you claim I have?
 
 Droits morals de l'auteur have nothing whatsoever to do with
 license, and you can't contract them away (in a droit d'auteur
 jurisdiction) no matter how hard you try.  An opinion arrived at via
 droits morals doesn't weaken the argument that all licenses are
 governed by contract law.

That's exactly the form legal logic would take when a case is decided
on some principle other than contract law.

Anyways, if you're willing to agree that contract law is not the only
relevant issue in deciding a case, I'm happy.

  My reading is that the court said that other remedies were available
  (other than termination of license).
 
  So how does this apply in the context of the GPL?
 
 The court said that remedies under a theory of copyright infringement
 were _not_ available because it had not been demonstrated that
 Microsoft's conduct was not within the scope of license claimed under
 the TLDA.

Note that this is not equivalent to saying that Microsoft's conduct was
within that scope.

  http://java.sun.com/lawsuit/012400motioncal.html
...
  Or is there some later court decision which takes
  precedence?
 
 That motion appealed exclusively to, and was granted entirely based
 on, a theory of unfair competition under California state law, which
 had nothing whatsoever to do with copyright infringement.  I will ask
 you again, do you bother to read a court decision before citing it as
 evidence in support of your arguments?

I think we can agree that Microsoft was violating the license.

I think

Re: RES: What makes software copyrightable anyway?

On 5/19/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/19/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  At issue in a breach of contract claim.  Not in a claim of copyright
  infringement -- not unless and until it is proven that the contract
  was justly terminated for material breach.
 
 Sure, someone who isn't violating the GPL isn't a problem.

Nice dodge!  Not much of a rebuttal, though.

  Do you not understand the distinction between issues of fact and of
  law?  What is so hard about applying the concept of scope of
  license, as articulated in those cases, to find the portions of the
  GPL (once construed in some particular way by a court of fact) that
  constitute scope of license?
 
 Ultimately, scope of license wasn't the issue.  Expectation of
 continuing harm was.
 
 Quite literally: the court didn't address the scope of
 license issue.

Bullshit.  Decision at http://java.sun.com/lawsuit/050800ruling.html ,
which I already pointed out to you and which is referred to in the
summary of the history of the litigation at the beginning of the case
you cited.

   Why not just use a phrase that indicates the particular flavor of
   meaning you're after.  For example The copyright grant licensed
   under the GPL?
  
   You don't have to redefine GPL to accomplish what you seem to
   want to accomplish.
 
  Sorry, Raul, but using the word license in the title doesn't make
  all of its terms and conditions suddenly become part of the scope of
  license analysis.  That's the argument that I was trying to preempt,
  to save wear and tear on everyone's in-boxes (or killfiles, as the
  case may be).  Oh well; it was worth a try, anyway.
 
 You do not need to redefine GPL to accomplish what you seem to
 want to accomplish.

What do you think you mean by this?

  Did I read this right?  Are you actually acknowledging that the GPL is
  a creature of contract law?  If so, I am in complete agreement with
  this last statement, as long as you recognize that (under US law,
  anyway) ambiguities in the text of the GPL must be construed against
  the offeror in the absence of clear evidence that the licensee read
  them in the offeror's favor at the time that the contract was
  accepted.
 
 I'm not really interested in classifying the GPL as a creature.
 
 I do agree that copyright cases in the U.S. are routinely analyzed
 using contract law.

Bullshit again.  Copyright _licenses_ in the US and elsewhere are
routinely analyzed using contract law.  Allegations of copyright
infringement, where the scope and validity of a claimed license are at
issue, use contract law to analyze that scope and validity.  Copying,
distribution, adaptation, translation, compilation, etc. that takes
place outside the scope of a valid license is routinely analyzed using
copyright law.

 I'm not going to touch your ambiguity argument, because I think
 you have some severe misunderstandings about what constitutes
 a legally relevant ambiguity.  However, to avoid argument, I'll
 agree that there are cases where ambiguity is construed in
 favor of the licensee.

Not there are cases.  It's an ironclad principle of law in common
law jurisdictions that ambiguities in contracts are to be construed
against the offeror, in the absence of evidence through oral
discussions, conduct, etc. that the offeree intended to be bound by
the offeror's construction.

  Droits morals de l'auteur have nothing whatsoever to do with
  license, and you can't contract them away (in a droit d'auteur
  jurisdiction) no matter how hard you try.  An opinion arrived at via
  droits morals doesn't weaken the argument that all licenses are
  governed by contract law.
 
 That's exactly the form legal logic would take when a case is decided
 on some principle other than contract law.
 
 Anyways, if you're willing to agree that contract law is not the only
 relevant issue in deciding a case, I'm happy.

Straw man.  No one is buying.

   My reading is that the court said that other remedies were available
   (other than termination of license).
  
   So how does this apply in the context of the GPL?
 
  The court said that remedies under a theory of copyright infringement
  were _not_ available because it had not been demonstrated that
  Microsoft's conduct was not within the scope of license claimed under
  the TLDA.
 
 Note that this is not equivalent to saying that Microsoft's conduct was
 within that scope.

No, but the district court's subsequent ruling did say this; and even
if it hadn't, the legal principle that analysis of scope of license
must precede any ruling on copyright infringement claims would still
hold.

   http://java.sun.com/lawsuit/012400motioncal.html
 ...
   Or is there some later court decision which takes
   precedence?
 
  That motion appealed exclusively to, and was granted entirely based
  on, a theory of unfair competition under California state law, which
  had nothing whatsoever to do with copyright infringement.  I will ask
  you again, do

Re: RES: What makes software copyrightable anyway?

On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
 On Thu, May 19, 2005 at 03:18:10PM -0700, Michael K. Edwards wrote:
  Actually, some jurisdictions (such as the US) recognize theories of
  vicarious and/or contributory infringement under which the scripter
  can be held liable for inciting and/or abetting the direct infringer's
  conduct.  My argument is instead that that binary is perfectly
  legitimate to begin with.
 
 My argument is that infringment has to actually take place in order for
 there to be contributory infringement.  If this is not the case, please
 explain how there can be contributory infringement without any actual
 infringement taking place.

On this point you are entirely correct.  I was only concerned about
this part of your statement:

 The rest of
 us, as far as I can tell, think that giving a user a script that makes it
 easier to compile a certain binary does not equate to distribution of the
 same binary.

If the binary did infringe, the script might well contribute.  That's
one reason why we handle DJB's works with such care (see
daemontools-installer).

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

On Thu, May 19, 2005 at 04:23:26PM -0700, Michael K. Edwards wrote:
 I was only concerned about this part of your statement:
 
  The rest of
  us, as far as I can tell, think that giving a user a script that makes it
  easier to compile a certain binary does not equate to distribution of the
  same binary.
 
 If the binary did infringe, the script might well contribute.

But I'm not sure how a binary can infringe on its own.

 one reason why we handle DJB's works with such care (see
 daemontools-installer).

I'm not sure if you used this as an example because you know that I'm the 
maintainer of that package, but yes, I am well aware of this issue.

--Adam


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Re: RES: What makes software copyrightable anyway?

On 5/19/05, Adam McKenna [EMAIL PROTECTED] wrote:
 On Thu, May 19, 2005 at 04:23:26PM -0700, Michael K. Edwards wrote:
  I was only concerned about this part of your statement:
 
   The rest of
   us, as far as I can tell, think that giving a user a script that makes it
   easier to compile a certain binary does not equate to distribution of the
   same binary.
 
  If the binary did infringe, the script might well contribute.
 
 But I'm not sure how a binary can infringe on its own.

If it's not an unlicensed derivative work (which it isn't, in the case
of Quagga etc.; IANAL), it can't.  But note that in principle the
creation of derivative works can be infringement even if they are not
distributed, and I haven't dug through case law to see exactly how far
17 USC 117 can be stretched from run-time use to local builds.

Note also the common-law principle (said to have equivalents in other
legal systems) that you're permitted to do anything that you have to
in order to make routine use of something that you have legitimately
acquired from someone who was legally in a position to offer you that
permission.  There's lots of case law on that with respect to EULAs,
implied patent licenses, etc.

  one reason why we handle DJB's works with such care (see
  daemontools-installer).
 
 I'm not sure if you used this as an example because you know that I'm the
 maintainer of that package, but yes, I am well aware of this issue.

Actually, I didn't make that connection, although I have had occasion
to use that package myself, and to point it out to a lawyer as
something to be aware of.  That's amusing.

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

On 5/19/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 On 5/19/05, Raul Miller [EMAIL PROTECTED] wrote:
  Quite literally: the court didn't address the scope of
  license issue.
 
 Bullshit.  Decision at http://java.sun.com/lawsuit/050800ruling.html ,
 which I already pointed out to you and which is referred to in the
 summary of the history of the litigation at the beginning of the case
 you cited.

Ok, that's a valid point.  I was not looking at that.

However, I believe my original point stands:  the contract 
has all sorts of limitations on when copyright termination 
can occur -- remedies other than license termination.
In many cases these remedies are required to be use
instead of license termination.  

For copyright termination to occur under that license, the
contract breach has to be in section 2.6, Sun has to 
warn Microsoft about the breach, a year has to pass
with the issue not resolved.  And, even then, any
published products retain their copyright -- even
if they're published up to six months after copyright
has been terminated.

This doesn't sound much like the sort of issue which
is relevant to the GPL.

  You do not need to redefine GPL to accomplish what you seem to
  want to accomplish.
 
 What do you think you mean by this?

In general terms: that you do not need to make statements of the
form The GPL is FOO to assert that FOO is relevant to the GPL.

I hesitate to be more specific because that would require I presume
I know what your point is.

  I'm not going to touch your ambiguity argument, because I think
  you have some severe misunderstandings about what constitutes
  a legally relevant ambiguity.  However, to avoid argument, I'll
  agree that there are cases where ambiguity is construed in
  favor of the licensee.
 
 Not there are cases.  It's an ironclad principle of law in common
 law jurisdictions that ambiguities in contracts are to be construed
 against the offeror, in the absence of evidence through oral
 discussions, conduct, etc. that the offeree intended to be bound by
 the offeror's construction.

But the ambiguities have to be valid ambiguities.

That's where we seem to differ on this issue.

   Droits morals de l'auteur have nothing whatsoever to do with
   license, and you can't contract them away (in a droit d'auteur
   jurisdiction) no matter how hard you try.  An opinion arrived at via
   droits morals doesn't weaken the argument that all licenses are
   governed by contract law.
 
  That's exactly the form legal logic would take when a case is decided
  on some principle other than contract law.
 
  Anyways, if you're willing to agree that contract law is not the only
  relevant issue in deciding a case, I'm happy.
 
 Straw man.  No one is buying.

Eh... ok.  I was remembering this:

  Existing case law with respect to copyright _licenses_ is 
   always, always, always based on contract law (in the US, 
   anyway).

And was thinking you meant that there could never be any
other kind of case.

 No, but the district court's subsequent ruling did say this; and even
 if it hadn't, the legal principle that analysis of scope of license
 must precede any ruling on copyright infringement claims would still
 hold.

But this seems rather irrelevant in the case of the GPL.

Either there's a breach -- in which case there is nothing within
the scope of the license (which is the default state under
copyright law) -- or there hasn't been, in which case the 
GPL has granted you some rights, and there's little or
no problem.

  I think we can agree that Microsoft was violating the license.
 
 I have seen no ruling to that effect that was not vacated by a higher
 court.  Microsoft was enjoined under a state law regarding unfair
 competition -- a tort -- for which the license terms were part of the
 evidence.  Do you have any indication that Sun succeeded in obtaining
 any judgment on a breach of contract theory?

I'm not sure I understand you here.  As I read it, the injunction was 
based in part on the belief that Microsoft would continue breaching 
the contract.  Are you saying that this could be the case when
Microsoft had never breached the contract?

Or are you referring to this being a preliminary injunction?
That nothing was actually proven -- that it was only shown that
the case was likely to succeed?  This seems standard for
preliminary injunctions.

Anyways, I'll quote from what appears to be the current
injunction -- as far as I know, this was not vacated?

   Preliminarily, Sun has established a reasonable likelihood 
   of success in demonstrating that Microsoft's distribution of 
   non-compliant Java technology violates the compatibility 
   provisions of the TLDA. See Sun, 21 F. Supp. 2d at 1119-22, 
   1122-25; Sun, 188 F.3d at 1120 (holding that substantial 
   evidence demonstrates that Microsoft violated the TLDA).

http://java.sun.com/lawsuit/012400motioncal.html

  I think we can agree that the district court did not address
  the issue of whether or not

Re: RES: What makes software copyrightable anyway?

On 5/19/05, Raul Miller [EMAIL PROTECTED] wrote:
 But the ambiguities have to be valid ambiguities.
 
 That's where we seem to differ on this issue.

I think there is little question that the work based on the Program
definition + erroneous paraphrase in Section 0 is either:  1) a valid
ambiguity (to be construed against the offeror on the licensee's
request), or 2) unambiguously readable only as derivative work under
copyright law, because the paraphrase is so weakly attached as to be
an implausible candidate for a definition even if the licensee wanted
it that way.  Perhaps you would now agree to this either/or, without
any implications for whether my reading of the phrase derivative work
under copyright law is correct?

 Eh... ok.  I was remembering this:
 
   Existing case law with respect to copyright _licenses_ is
always, always, always based on contract law (in the US,
anyway).
 
 And was thinking you meant that there could never be any
 other kind of case.

That's understandable.  I have at times acted more like I was
disputing with the author of the FSF's FAQ (and Philosophy of Free
Software article) than with you.  There's no question that other
parts of the law come up in real-world cases where a copyrighted work
is in dispute.  Let's go with, whatever the cause of action under
discussion, a claim of (non-exclusive) license to a copyright is
always viewed through the lens of contract law, and construed
accordingly.  OK?

  No, but the district court's subsequent ruling did say this; and even
  if it hadn't, the legal principle that analysis of scope of license
  must precede any ruling on copyright infringement claims would still
  hold.
 
 But this seems rather irrelevant in the case of the GPL.
 
 Either there's a breach -- in which case there is nothing within
 the scope of the license (which is the default state under
 copyright law) -- or there hasn't been, in which case the
 GPL has granted you some rights, and there's little or
 no problem.

Can we focus on this question of what scope of license means for a
bit?  I am _not_ talking about what happens once a court rules that a
license has been terminated for breach of contract.  I am talking
about a situation where the contract wouldn't authorize the
defendant's conduct irrespective of whether it had been breached.  In
this situation -- and only in this situation -- can the court skip the
rest of the contract analysis.

That's the question on which the Sun v. Microsoft appellate decision
hinged -- the district court couldn't rule correctly on a copyright
infringement claim until it had evaluated the scope of the license. 
And on remand, it correctly (IMHO, IANAL) concluded that the scope of
the TLDA included the conduct that Sun had alleged constituted
infringement, and denied Sun's copyright infringement claims.

   I think we can agree that Microsoft was violating the license.
 
  I have seen no ruling to that effect that was not vacated by a higher
  court.  Microsoft was enjoined under a state law regarding unfair
  competition -- a tort -- for which the license terms were part of the
  evidence.  Do you have any indication that Sun succeeded in obtaining
  any judgment on a breach of contract theory?
 
 I'm not sure I understand you here.  As I read it, the injunction was
 based in part on the belief that Microsoft would continue breaching
 the contract.  Are you saying that this could be the case when
 Microsoft had never breached the contract?

It still appears to me that no remedy, injunctive or otherwise, for
breach of contract was ever ordered in that sequence of cases
(although I still have more to read).  But on review, there's an
element of breach of contract theory in the likelihood of success on
the merits part of the unfair competition judgment.  The finding that
Microsoft probably violated the compatibility provisions of the TLDA
was a significant part of the support for the conclusion that their
competitive practices were unfair.  It appears to me (IANAL) to be
possible that the unfair competition ruling would not stand without
adequate evidence that Microsoft's conduct violated a binding
agreement with Sun -- i. e., breached the contract.  Score one for
you.

The recurrence part also had to do with the facts surrounding the
unfair competition claim -- but you're basically right.  The court
judged that, in the absence of a court order, Microsoft was likely to
go on playing shell games with the real specification-compliant MS
Java run-time and SDKJ.  It accordingly enjoined Microsoft to put up
or shut up (not a literal quote) -- either give the real Java equal
standing with its embraced and extended edition, or stop
distributing any Java Technology at all.

 Or are you referring to this being a preliminary injunction?
 That nothing was actually proven -- that it was only shown that
 the case was likely to succeed?  This seems standard for
 preliminary injunctions.
 
 Anyways, I'll quote from what appears to be the

Re: RES: What makes software copyrightable anyway?

On 5/17/05, Raul Miller [EMAIL PROTECTED] wrote:
 Anyways, I don't really care whether or not you can find a conflict
 between some perhaps irrelevant text and the definition you've
 asserted -- I want to see some citation that leads me to believe
 that the distinction you've asserted is correct.

Hey, you were the one who claimed that the assertion a license is a
provision in a contract conflicted with the cases cited in my
previous e-mail.  I repeat, what conflict did you have in mind,
exactly?

As for positive citations, I think I've been pretty generous with them
already: Sun v. Microsoft, SOS v. Payday, Jacob Maxwell v. Veeck,
Effects v. Cohen, op. cit., and all that.  One of these days I'll drop
by the law library and get chapter and verse from Corbin and Nimmer --
unless someone else feels like putting in the effort.  Leading you to
believe something you don't already believe seems to be rather hard
work.  (I suppose that's equally true of me.)

Does it help if I concede that sometimes a judge uses the word
license to refer to the whole agreement, not just the provision
granting certain rights from licensor to licensee?  (Not, mind you,
when it's particularly important to the case at hand, as when
analyzing the scope of license -- a judge who makes that error gets
overruled on appeal, which is embarrassing.)  Would you consider
conceding, in return, that you can't find any court decision that
applied some legal theory other than contract in order to analyze the
scope and effect of a license, and it's not for lack of trying?

In any case, you may rest assured that, if I do run across case law
that uses another theory to analyze a license, I will bring it to your
attention.  After all, this background research is not exactly rocket
science; anything I can find with FindLaw, anyone else can too, and
sooner or later someone will.

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

 On 5/17/05, Raul Miller [EMAIL PROTECTED] wrote:
  Anyways, I don't really care whether or not you can find a conflict
  between some perhaps irrelevant text and the definition you've
  asserted -- I want to see some citation that leads me to believe
  that the distinction you've asserted is correct.

On 5/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 Hey, you were the one who claimed that the assertion a license is a
 provision in a contract conflicted with the cases cited in my
 previous e-mail.  I repeat, what conflict did you have in mind,
 exactly?

I did?  I can't find that assertion.

Maybe you're talking about this exchange (text cut down 
and paraphrased.for readability):

R: GPL is a license or a license agreement
M: No.  License is a provision in a contract
R: Could you provide a cite?  That conflicts with [what I know]

 Does it help if I concede that sometimes a judge uses the word
 license to refer to the whole agreement, not just the provision
 granting certain rights from licensor to licensee?

Yes, that helps in the sense that it more closely corresponds
with reality as I know it.

 Would you consider  conceding, in return, that you can't find 
 any court decision that applied some legal theory other than
 contract in order to analyze the scope and effect of a license, 
 and it's not for lack of trying?

No, I will not.

Huston v. La Cinq Cass. civ. 1re (28 May 1991). is an
example of a court decision that applied some legal theory
other than contract in order to analyze the scope and
effect of a license.

Thanks,

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 Yeah, I already corrected you on that one.  I very much doubt that
 you've even read the decision, and you certainly have made no attempt
 to substantiate your claim about the reasoning it contains.  I don't
 know why I even bother at this point -- I doubt that there's a single
 debian-legal reader who both is permeable to reasoning and believes
 that your statements are founded in fact and law.  If that reader
 exists, now would be a good time to speak up.

Hmm, that's somewhat harsher than I intended.  It would be fairer to
say that you have made quite a few statements that are poorly, if at
all, supported by the available fact and law; and when challenged on
their factual and legal basis, your responses are not very convincing.
 In particular, your belief in the existence of cases that apply some
legal theory other than contract in order to analyze the scope and
effect of a license does not appear to be founded in fact or law.  I
suspect that most debian-legal readers agree with that particular
assessment, and that those who do not are on the impermeable end of
the spectrum.

Sorry to have overreacted again, but this is getting ludicrous. 
Honestly now, have you read Heritiers Huston c. Societe Turner et al.?
 You might find the decision of the Versailles appeals court,
subsequent to the Cour de Cassation proceeding, enlightening.  It's at
http://www.droit-auteur.com/jurisprudence_general_divers4-1.htm , and
the part relevant to the current discussion is (my translation):

translation
But considering that colorisation is a technique based on the use of
a computer and a laser, and that it permits (after the transfer of the
original black-and-white film onto a videotape medium) the application
of colors to a film that originally lacked them;  that the result of
such a process is in no way comparable to an adaptation, which is
defined as an original work of both expression and composition even
though it borrows formal elements from a pre-existing work;  and that,
far from fitting these criteria, colorisation consists in effect of
nothing but modifying a work by adding an element entirely foreign to
the creator's aesthetic conception;

And considering that in this instance, the original court has stated
precisely that the the aesthetic conception which gave John Huston his
great fame is founded on the interplay of black and white which
allowed him to create the atmosphere in the context of which he
directed actors and chose settings;  that in any case he stated this
clearly, in connection with his film The Maltese Falcon, saying I
have crafted it in black and white, as a sculptor chooses to fashion
clay, to cast his work in bronze, to sculpt marble.

And given that in 1950 the technique of filming in color was already
widespread and that another option was available, it is manifestly in
pursuit of a deliberate aesthetic choice that the film Asphalt
Jungle was crafted in black and white according to the process that
its authors felt was most appropriate to the character of the work;
/translation

So the Turner Corporation was deliberately flouting the director's
famous aesthetic preference for black-and-white film, which was
unarguably a deliberate choice with regard to Asphalt Jungle, in
order to appeal commercially to a certain audience.  That seems to be
what it takes to prove an offense against droits morals de l'auteur. 
Comments from real francophones and/or lawyers in droit d'auteur
jurisdictions?

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

2005-05-18 Thread Anthony DeRobertis

Raul Miller wrote:
Are you claiming that we have a license to distribute the work based
on the program Quagga which also contains and uses openssl?
In source code form, yes, we do under sections 1 and 2 of the GPL. The 
the source code for all modules it contains is part of section 3, 
which doesn't matter when we're distributing source.

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Re: RES: What makes software copyrightable anyway?

On 5/18/05, Anthony DeRobertis [EMAIL PROTECTED] wrote:
 Raul Miller wrote:
  Are you claiming that we have a license to distribute the work based
  on the program Quagga which also contains and uses openssl?

uses is utterly irrelevant anyway, and contains isn't the case
when we're talking dynamic linking, and work based on the Program is
limited to the scope of a derivative work, which doesn't include the
separate works that Quagga uses through their published interfaces.

 In source code form, yes, we do under sections 1 and 2 of the GPL. The
 the source code for all modules it contains is part of section 3,
 which doesn't matter when we're distributing source.

This is also true.

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

As usual, I don't know what your point is.

If I read you right, you're claiming that I mis-read my own question --
that I really wasn't asking for clarifcation on why you asserted that
the GPL is not a license.

If I read you right, you think that my citation of this case involving
colorization was presented as something more than an example of a case
based on something other than contract law.

As for the scope of license issue... you seem to be
referring to a principle used in patent law, and a principle
which people think should be incorporated into contract law.
http://www.uspto.gov/web/offices/pac/mpep/documents/appxr_5_15.htm
http://www.law.upenn.edu/bll/ulc/ucita/citam99.htm

As near as I can tell, you're asserting that in the context of a single
instance of a single work the GPL can be factored into multiple licenses
between a single copyright holder and a single licensee.  And, you seem
to be asserting that because this is the case that it's not correct to
refer to the GPL as a license between these two parties, but instead
it is oly correct to refer to the GPL as an offer of contract between
these two parties.

Have I got that right?

If not, PLEASE simply state your point.

If so, I think what you're really saying is that when the GPL uses the
phrase this license, it does not refer to the GNU General Public
License but to some particular instance of its application.

If that's not what you're thinking, could you please state your ideas
more simply?

In other words, I think you're saying that a court would conclude that
section 4 of the GPL is meaningless -- that the GPL granted the
licensee multiple licenses and that only some of them terminated.

Again, if this is not what you're saying, please make your point more
simply.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/18/05, Anthony DeRobertis [EMAIL PROTECTED] wrote:
 In source code form, yes, we do under sections 1 and 2 of the GPL. The
 the source code for all modules it contains is part of section 3,
 which doesn't matter when we're distributing source.

If distribute meant distribute in the form of debian packages as
defined by the semantics of dpkg as opposed to distribute whatever 
the mechanism, we'd be golden.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

2005-05-18 Thread Anthony DeRobertis

Raul Miller wrote:
If distribute meant distribute in the form of debian packages as
defined by the semantics of dpkg as opposed to distribute whatever 
the mechanism, we'd be golden.
As long as we don't distribute GPL'd code linked with OpenSSL in object 
code or executable form, but only as source code, we don't have a GPL 
problem AFAICT (source code, of course, being defined as always by the 
GPL as ...the preferred form of the work for making modifications to it.)

As I'm sure you're aware, debian's source code format is a tarball and a 
diff. I don't think there is any question that is an allowed way to 
distribute source under the GPL (and if it is not, we've got much bigger 
problems).

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Re: RES: What makes software copyrightable anyway?

On 5/18/05, Raul Miller [EMAIL PROTECTED] wrote:
 As usual, I don't know what your point is.
 
 If I read you right, you're claiming that I mis-read my own question --
 that I really wasn't asking for clarifcation on why you asserted that
 the GPL is not a license.

OK, let's clarify that.  There is a particular legal use of the word
license, as in the phrase scope of the license, which refers
specifically to an individual provision in a contract that says what
rights the copyright holder (or, in other settings, patent holder,
etc.) is offering to the licensee.  Under the 1976 Copyright Act,
there are a variety of rights (to copy, to adapt, to translate, to
write sequels, to anthologize, etc.) that are divisible when issuing
non-exclusive licenses.

If the license granted is limited to the making of copies, and the
licensee exceeds its scope by modifying the work (and thereby creating
a derivative work), then this conduct outside the scope of the
license is not part of the contractual relationship between the
parties, and the licensor has a cause of action under copyright law
(the tort of copyright infringement).  This is the _only_ shortcut
of which I am aware under US law that allows a plaintiff to prevail
under a copyright law theory while there is a valid, unterminated
contract licensing rights to the same work to the defendant.

This scope of license construction does not involve any fine
judgments about whether the licensee's return performance is up to
snuff.  Claiming that the entire GPL is a license in this technical
sense is erroneous.  You don't have to believe me on this, you can
read SOS v. Payday yourself, and see how it was applied in Sun v.
Microsoft.

The everyday, interchangeable use of contract, agreement,
license, license agreement, terms and conditions, etc. spills
over into legal opinions as well, of course; but I split this
particular hair at this particular juncture because I don't want to go
down the rathole of misinterpreting the phrase scope of license to
refer to the entirety of the GPL.  OK?

 If I read you right, you think that my citation of this case involving
 colorization was presented as something more than an example of a case
 based on something other than contract law.

You keep asserting that the GPL is not a contract, apparently
meaning that principles of contract law in a given jurisdiction
shouldn't be used to construe its legal meaning.  You haven't advanced
any other theory under which it has any legal relevance; but you keep
(IMHO) grasping at straws that someone has told you are connected to a
court decision in which the terms of an agreement were analyzed using
some other theory.  Heritiers Huston is the latest straw in the
series, about which you said:

quote
Huston v. La Cinq Cass. civ. 1re (28 May 1991). is an
example of a court decision that applied some legal theory
other than contract in order to analyze the scope and
effect of a license.
/quote

That's a misunderstanding of the import of Heritiers Huston.  The
terms of the license between John Huston and the original producer of
The Asphalt Jungle were brought into evidence and strongly urged by
Turner Corporation, but were ultimately irrelevant to the judgment in
the case.  The plaintiffs prevailed on a droits morals de l'auteur
theory, founded in the French equivalent of copyright law -- a
statutory override on what rights it is possible for an author to
contract away, just like the termination provisions in 17 USC 203.

 As for the scope of license issue... you seem to be
 referring to a principle used in patent law, and a principle
 which people think should be incorporated into contract law.
 http://www.uspto.gov/web/offices/pac/mpep/documents/appxr_5_15.htm
 http://www.law.upenn.edu/bll/ulc/ucita/citam99.htm

Sigh.  If you're going to read one court decision, how about making it
Sun v. Microsoft?  The application of scope of license to copyright
licenses is staring you in the face in the very paragraphs that we
have most recently been wrangling over.

 As near as I can tell, you're asserting that in the context of a single
 instance of a single work the GPL can be factored into multiple licenses
 between a single copyright holder and a single licensee.  And, you seem
 to be asserting that because this is the case that it's not correct to
 refer to the GPL as a license between these two parties, but instead
 it is oly correct to refer to the GPL as an offer of contract between
 these two parties.
 
 Have I got that right?

That's not what I'm asserting, but note that under some circumstances
it can be true.  See the discussion of contractual covenants in the
Sun v. Microsoft saga.

 If not, PLEASE simply state your point.
 
 If so, I think what you're really saying is that when the GPL uses the
 phrase this license, it does not refer to the GNU General Public
 License but to some particular instance of its application.
 
 If that's not what you're thinking, could you please state your ideas
 more

Re: RES: What makes software copyrightable anyway?

On 5/18/05, Anthony DeRobertis [EMAIL PROTECTED] wrote:
 Raul Miller wrote:
  If distribute meant distribute in the form of debian packages as
  defined by the semantics of dpkg as opposed to distribute whatever
  the mechanism, we'd be golden.
 
 As long as we don't distribute GPL'd code linked with OpenSSL in object
 code or executable form, but only as source code, we don't have a GPL
 problem AFAICT (source code, of course, being defined as always by the
 GPL as ...the preferred form of the work for making modifications to it.)
 
 As I'm sure you're aware, debian's source code format is a tarball and a
 diff. I don't think there is any question that is an allowed way to
 distribute source under the GPL (and if it is not, we've got much bigger
 problems).

But we're doing more than distributing the tarball.  The tarballs we're
distributing have been modified so that the user need only type a
couple commands, and (using software we've provided) the 
binaries are reconstituted on their machine.

Logically, the process used here is more complex than that used by
gunzip, but effect is similar.

The end result is that we have taken steps to make the binaries appear
on the user's machine, so we have some responsibility for that result.

Of course... if it turns out that the GPL doesn't really matter for some other
reason, this would be no big deal.  M.K.Edwards appears to be arguing
that this is the case, but I'm still not convinced.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/18/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 OK, let's clarify that.  There is a particular legal use of the word
 license, as in the phrase scope of the license, which refers
 specifically to an individual provision in a contract that says what
 rights the copyright holder (or, in other settings, patent holder,
 etc.) is offering to the licensee.  Under the 1976 Copyright Act,
 there are a variety of rights (to copy, to adapt, to translate, to
 write sequels, to anthologize, etc.) that are divisible when issuing
 non-exclusive licenses.

In broad terms, I agree with you.  However, in fine detail, I do not.

Here's a checklist of the sorts of things a license preparer should
consider under the heading scope of license:
http://www.allbusiness.com/forms/license/118.html

That's not legal precedent, certainly, but if it was seriously in
error I'd expect to see people jumping up and down in anger
at how wrong this presentation is.

In other words, I think the rights granted in the license is included
in the concept scope of license but I have yet to see any reason
to believe that there is some kind of equation that says one right 
equals one license.

 If the license granted is limited to the making of copies, and the
 licensee exceeds its scope by modifying the work (and thereby creating
 a derivative work), then this conduct outside the scope of the
 license is not part of the contractual relationship between the
 parties, and the licensor has a cause of action under copyright law
 (the tort of copyright infringement).  

Agreed.

 This is the _only_ shortcut of which I am aware under US law that 
 allows a plaintiff to prevail  under a copyright law theory while there 
 is a valid, unterminated contract licensing rights to the same work 
 to the defendant.

I have no disagreement here.  [Though I wouldn't use the term
shortcut.]

 This scope of license construction does not involve any fine
 judgments about whether the licensee's return performance is up to
 snuff.

If the GPL is an offer of contract, the only remedy explicitly included
in the agreement is termination of all rights.  Which means that
the licensee's return performance is very much at issue.

 Claiming that the entire GPL is a license in this technical
 sense is erroneous.

Why?

 You don't have to believe me on this, you can
 read SOS v. Payday yourself, and see how it was applied in Sun v.
 Microsoft.

That did not involve the GPL.  You have not established the
parallel.

Unless... are you claiming that the agreement between Sun and
Microsoft had as its only remedy termination of license?

 The everyday, interchangeable use of contract, agreement,
 license, license agreement, terms and conditions, etc. spills
 over into legal opinions as well, of course; but I split this
 particular hair at this particular juncture because I don't want to go
 down the rathole of misinterpreting the phrase scope of license to
 refer to the entirety of the GPL.  OK?

Why not just use a phrase that indicates the particular flavor of
meaning you're after.  For example The copyright grant licensed
under the GPL?

You don't have to redefine GPL to accomplish what you seem to
want to accomplish.

  If I read you right, you think that my citation of this case involving
  colorization was presented as something more than an example of a case
  based on something other than contract law.
 
 You keep asserting that the GPL is not a contract, apparently
 meaning that principles of contract law in a given jurisdiction
 shouldn't be used to construe its legal meaning.  

Actually, I'm saying that in recognition that contract law is applicable.

The contract is going to include the GPL plus whatever additional
terms are supplied by law.

 You haven't advanced
 any other theory under which it has any legal relevance; but you keep
 (IMHO) grasping at straws that someone has told you are connected to a
 court decision in which the terms of an agreement were analyzed using
 some other theory.  Heritiers Huston is the latest straw in the
 series, about which you said:
 
 quote
 Huston v. La Cinq Cass. civ. 1re (28 May 1991). is an
 example of a court decision that applied some legal theory
 other than contract in order to analyze the scope and
 effect of a license.
 /quote
 
 That's a misunderstanding of the import of Heritiers Huston.  The
 terms of the license between John Huston and the original producer of
 The Asphalt Jungle were brought into evidence and strongly urged by
 Turner Corporation, but were ultimately irrelevant to the judgment in
 the case.  The plaintiffs prevailed on a droits morals de l'auteur
 theory, founded in the French equivalent of copyright law -- a
 statutory override on what rights it is possible for an author to
 contract away, just like the termination provisions in 17 USC 203.

So, given your concluding statement there, what is the misunderstanding 
which you claim I have?

  As for the scope of license issue... you seem to be

Re: RES: What makes software copyrightable anyway?

On 5/17/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 What do you think the appeals court asserted?  I stand by my
 statement:  in the absence of a proper analysis of the scope of
 license, the district court's judgment was wrong.  And, I might add,
 the district court, on re-hearing, dismissed Sun's copyright
 infringement claims on the basis of a proper contract analysis.  The
 district court's order may be found at
 http://java.sun.com/lawsuit/050800ruling.html .

You're claiming that GNU Public License, under law, will not be
treated as a copyright licensee but as a contract.

Further, you're claiming that violations of that license must
be treated by the court as conduct within the scope of that 
contract.

Further, you're claiming that people (such as myself) who
claim otherwise are ignorant of the law.

I think you're being rather presumptuous.

  Unfortunately, there's not a lot of case law in this area because so many
   of these commercial issues get worked out prior to trial.
  http://library.findlaw.com/2003/Dec/19/133224.html
...
 So this area is short for the free software and open source
 software areas, not the area of copyright licenses.  Try again.  Or
 rather, don't, not for my benefit, anyway.

So?

  You are free, of course, to conclude that a legal professional
  who draws a different conclusion from you is on crack.
 
 No, a legal professional who draws a different conclusion from the
 entire body of case law applicable to his jurisdiction is on crack, or
 something similarly mind-altering (ideology, for instance).

Ok, again it seems like you're being presumptuous.

 [7] Whether this is a copyright or a contract case turns on
 whether the compatibility provisions help define the scope of
 the license. Generally, a copyright owner who grants a non-
 exclusive license to use his copyrighted material waives his
 right to sue the licensee for copyright infringement  and can
 sue only for breach of contract. Graham v. James , 144 F.3d
 229, 236 (2d Cir. 1998) (citing Peer Int'l Corp. v. Pansa
 Records, Inc., 909 F.2d 1332, 1338-39 (9th Cir. 1990)). If,
 however, a license is limited in scope and the licensee acts
 outside the scope, the licensor can bring an action for copy-
 right infringement. See S.O.S., Inc. v. Payday, Inc., 886 F.2d
 1081, 1087 (9th Cir. 1989); Nimmer on Copyright , S 1015[A]
 (1999).

   No, it says that there's two relevant kinds of suits -- breach of
   contract and copyright infringement -- and that the latter recourse is
   not available to someone who has granted a license of sufficient
   scope, even if the licensee is in breach of return obligations under
   the contract containing that license.

  You're making up most of that. (everything after the second --).
 
 I am doing nothing of the sort.  The paragraph is structured like so:
 Generally, X.  If, however, Y, then also Z.  I restated it as: Only
 Z and X are possible.  In the absence of Y, not Z, only X -- even if
 Q.  Do you have a problem with that?

A proper restatement would be Only Z and X are significant to
this kind of case.

That said, a court could decide that if you do not own copyright
on some software B, which does not satisfy the terms of the
GPL, then the act of creating and distributing derivatives 
combining GPLed work A and software B are outside the scope
of the GPL.

 Do you have in mind some W that is also possible?  

Yes.  That in contexts where the return obligations are 
expressed as copyright licensing requirements, that 
these return obligations will be treated as qualitatively
different from other sorts of return obligations.

If you're the copyright holder, that's one thing.  If you're
not the copyright holder you can be expressing an intent
to violate two licenses.  If the GPL copyright holder and
the other copyright holder bring suit against you together
you could be in for some serious legal problems.

 If so, bring it on -- together with at least one case in 
 any jurisdiction in which that theory W was used to reach a
 verdict.  I think you'll find that that rules out the Tort of
 Miscellaneous Offense.

This bogus constraint rules out any consideration of the GPL.

If this is the essence of your claims about what the significance
of the GPL, I wish you'd take it elsewhere.

  Here you're saying there exists some x which is a subset of C
  which is not a subset of D.  This can hold regardless of whether
  C and D are disjoint.
 
 No, I'm saying:
 d(x) is the set of derivative works of x
 x \in C does not imply that d(x) \subset C;
   on the contrary, d(x) \subset D for any x, and D \intersection C = 
 \null .

I know that's what you're saying.  I'm saying that you've
not shown that D and C correspond to derivative works and
collective works as defined by law.

   If you are creating a derivative work of a collective work (by
   applying the process of adaptation, translation, etc. to the whole)
   then

Re: RES: What makes software copyrightable anyway?

2005-05-17 Thread Michael Poole

Raul Miller writes:

 On 5/17/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 What do you think the appeals court asserted?  I stand by my
 statement:  in the absence of a proper analysis of the scope of
 license, the district court's judgment was wrong.  And, I might add,
 the district court, on re-hearing, dismissed Sun's copyright
 infringement claims on the basis of a proper contract analysis.  The
 district court's order may be found at
 http://java.sun.com/lawsuit/050800ruling.html .

 You're claiming that GNU Public License, under law, will not be
 treated as a copyright licensee but as a contract.

 Further, you're claiming that violations of that license must
 be treated by the court as conduct within the scope of that 
 contract.

 Further, you're claiming that people (such as myself) who
 claim otherwise are ignorant of the law.

 I think you're being rather presumptuous.

The first threshold issue for treating the GPL as some sort of pure
copyright license is finding a basis in law for such treatment.  The
US Copyright Act does not mention such a thing.  Even in common law
countries, agreements to exchange things of value (such as rights
reserved under law) are customarily treated as contracts.

Copyright law sets certain basic rules and limits on what the rights
owner and general public can expect _by_default_.  Although IANAL,
every holding in a copyright action that I know of has been based
either on that default set of permissions or on an explicit contract.

Claiming that you can have a non-contract copyright license, whether
it that claim is from the FSF's opinion or your own, is what wants
support.  So far, Michael K. Edwards is doing a better job arguing his
position than you are arguing yours.  It is wishful thinking -- even
though wishes occasionally come true -- to expect that courts will
agree with you in the absense of a clear basis in case or statute law.

Claiming he is being presumptuous without supporting that claim does
not help; it makes it seem like you have no better argument than a
belief that you and the FSF share.

Michael Poole


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Re: RES: What makes software copyrightable anyway?

On 5/17/05, Michael Poole [EMAIL PROTECTED] wrote:
 Raul Miller writes:
  I don't really know what a pure copyright license means,
  and I'm not arguing that that is the case.  [I am arguing,
  elsewhere, that there are some reasonable moral standards
  associated with legal conduct in these areas, and that a
  person could be sued for neglecting those issues.  But
  that's tangential in this context.[
 
  I am arguing, here, that the scope of that license does not
  include making unlicensed collective works.
 
 This is circularly true.  No license licenses (permits) acts that it
 does not license.

Actually, it's circularly bullshit.  The scope of that license does
include the making and distribution of collective works, courtesy of
both the mere aggregation clause (as ably construed by Humberto) and
the simple fact that people in the computer industry lump a bunch of
software installers on the same media all the time, without any
special license.  When that's the prevailing and expected practice,
it's easily construed as an implied term in the contract, in the
absence of clear language to the contrary.

And if you have any worries about the (uncopyrightable because obvious
from the text of Quagga alone) collection Quagga + NetSNMP + libssl,
you certainly needn't worry about it in the US given the way those
components are actually packaged (dynamic linking); that combination
only occurs at run-time, and is exempt from the entire copyright
infringement calculus per 17 USC 117.

 I do not read his argument as meaning that.  I read his argument and
 case citations as meaning that, when a contract exists, a court would
 have to determine the proper forms of liability and relief by looking
 at the contract first.

The court also has to look at the contract to determine the scope of
the license.  That scope is determined by what license is granted when
all conditions of all return performance, etc. are met.  For example,
the scope of a typical license to publish involves editorial
corrections (subject to reasonable approval by the author);  if the
book goes out with corrections that weren't run by the author for
approval, then the author has a possible cause of action for breach of
contract, but not for copyright infringement, because the publisher's
action was within the scope of the license.  This seems to be another
part of the agenda behind all of that GPL is a creature of copyright
law bullshit -- an attempt to get the covenants of return performance
rolled into the scope.

 My layperson's interpretation of the rationale is that since the
 contract is specific to the parties, it defines their rights and
 responsibilities -- within the bounds of the contract -- rather than
 using those defined by statute.

I think that's right, modulo rules about what terms can and can't be
construed into a contract (see discussions about copyright assignment,
license termination, and agency to sublicense).  IANAL, etc.

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

On 5/17/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 On 5/17/05, Michael Poole [EMAIL PROTECTED] wrote:
  Raul Miller writes:
 Actually, it's circularly bullshit.  The scope of that license does
 include the making and distribution of collective works, courtesy of
 both the mere aggregation clause (as ably construed by Humberto) and
 the simple fact that people in the computer industry lump a bunch of
 software installers on the same media all the time, without any
 special license.  When that's the prevailing and expected practice,
 it's easily construed as an implied term in the contract, in the
 absence of clear language to the contrary.

Which is why I said unlicensed collective works.

 And if you have any worries about the (uncopyrightable because obvious
 from the text of Quagga alone) collection Quagga + NetSNMP + libssl,
 you certainly needn't worry about it in the US given the way those
 components are actually packaged (dynamic linking); that combination
 only occurs at run-time, and is exempt from the entire copyright
 infringement calculus per 17 USC 117.

If this Quagga collection is uncopyrightable, then any
supposed flaws or features of the GPL are irrelevant,
as is their discussion.

There's really no point in discussing the terms of 
the GPL with you in this context if this is what you
sincerely believe.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

  Then again, as an example of a copyright case where
  contract law was held to be irrelevant, consider Huston v. La
  Cinq Cass. civ. 1re (28 May 1991).

On 5/17/05, Michael Poole [EMAIL PROTECTED] wrote:
 Hm, so a French court could claim jurisdiction over a case where a
 modification is made to free software that the original software's
 author opposed and the modified work is distributed in France.

Among other things, yes.

 Was your point that significant use of free software is untenable in
 continental Europe, or that droit d'auteur is distinct from the more
 economic parts of copyright (the parts the GPL addresses)?

Let me put it to you this way:

I claim that the GPL is not a contract.

I don't believe I'm disputing any claim you've made when
I say this, because near as I can tell you have never
actually asserted that the GPL is a contract.  The closest
you've come seems to be this:

 I've engaged in an extended discussion with the person on the other
 end of [EMAIL PROTECTED], to whom Eben Moglen directed me, on both the
 derivative work and GPL is a contract points.  IANAL, and neither
 is [EMAIL PROTECTED], but I raised many of the US legal precedents
 which I have previously cited on debian-legal.  Suffice it to say that
 if the FSF has a leg to stand on, it's not visible through that
 mechanism of inquiry.

Similarly, the specific claims you've proposed in your above
paragraph don't really correspond to anything that I'm saying.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

2005-05-17 Thread Michael Poole

Raul Miller writes:

  Then again, as an example of a copyright case where
  contract law was held to be irrelevant, consider Huston v. La
  Cinq Cass. civ. 1re (28 May 1991).

 On 5/17/05, Michael Poole [EMAIL PROTECTED] wrote:
 Hm, so a French court could claim jurisdiction over a case where a
 modification is made to free software that the original software's
 author opposed and the modified work is distributed in France.

 Among other things, yes.

That seems rather non-free.

 Was your point that significant use of free software is untenable in
 continental Europe, or that droit d'auteur is distinct from the more
 economic parts of copyright (the parts the GPL addresses)?

 Let me put it to you this way:

 I claim that the GPL is not a contract.

That ignores my question, but that is what I meant earlier by asking
if you wanted the GPL to be a pure copyright license.

Since France is a civil law country, many more things are treated as
contracts -- which is not a great translation, as is sometimes
pointed out on this list, since the English word contract has a
connotation of the common law contract framework.  French courts would
probably treat the GPL as a contract.

 I don't believe I'm disputing any claim you've made when
 I say this, because near as I can tell you have never
 actually asserted that the GPL is a contract.  The closest
 you've come seems to be this:

  I've engaged in an extended discussion with the person on the other
  end of [EMAIL PROTECTED], to whom Eben Moglen directed me, on both the
  derivative work and GPL is a contract points.  IANAL, and neither
  is [EMAIL PROTECTED], but I raised many of the US legal precedents
  which I have previously cited on debian-legal.  Suffice it to say that
  if the FSF has a leg to stand on, it's not visible through that
  mechanism of inquiry.

 Similarly, the specific claims you've proposed in your above
 paragraph don't really correspond to anything that I'm saying.

That was not me, but I have concerns similar to those.  I am skeptical
that a common law court would on its own establish a non-contract
basis the kind of obligations the GPL imposes.  Courts need a basis to
determine the questions of law that follow from a claimed breach: In
situation X, does action Y imply liability?  If so, what are the
possible remedies?

Copyright law by itself does not establish a framework to evaluate
claims of license violation.  In the absense of some better framework,
I think a common law court would treat the GPL as a contract.  If you
know of a better framework -- set in usable form by either statute or
case law -- I am interested in hearing it.

Michael Poole


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Re: RES: What makes software copyrightable anyway?

On 5/17/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  I claim that the GPL is not a contract.
 
  I don't believe I'm disputing any claim you've made when
  I say this, because near as I can tell you have never
  actually asserted that the GPL is a contract.  The closest
  you've come seems to be this:

 This appears to be addressed to me, since that's a quote from
 something I wrote. 

Oh, yeah, wrong Michael. 

Oops.

Michael, I apologize for confusing you with Michael.

And, Michael, i also apologize for confusing you with Michael.

(I'm making light here, but I really do apologize.)

 If you are entirely unable to find, via your mail
 client or in the debian-legal archives, one of the dozens of times
 that I have written the GPL is an offer of contract, here it is for
 your convenience:
 
 assertion by=guess who
 The GPL is an offer of contract.
 /assertion

Good enough.  I should probably point out that the GPL 
(in the U.S.A., where copyright is routinely resolved as 
a contractual issue, and, if both parties have agreed to it) 
would be treated as and agreement under contract law, 
and not the contract.  At least, that's my understanding of 
§ 1-201 of the UCC.

http://www.law.cornell.edu/ucc/1/1-201.html

If you want to be technically correct, I think you could
call it a license, or even a license agreement.  (Though,
license agreement probably implies that an agreement
has been made -- which needn't be true in all contexts.) 

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/17/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/17/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
   I claim that the GPL is not a contract.
  
   I don't believe I'm disputing any claim you've made when
   I say this, because near as I can tell you have never
   actually asserted that the GPL is a contract.  The closest
   you've come seems to be this:
 
  This appears to be addressed to me, since that's a quote from
  something I wrote.
 
 Oh, yeah, wrong Michael.
 
 Oops.
 
 Michael, I apologize for confusing you with Michael.
 
 And, Michael, i also apologize for confusing you with Michael.
 
 (I'm making light here, but I really do apologize.)

No worries.  No offense taken in the first place.  :-)

  If you are entirely unable to find, via your mail
  client or in the debian-legal archives, one of the dozens of times
  that I have written the GPL is an offer of contract, here it is for
  your convenience:
 
  assertion by=guess who
  The GPL is an offer of contract.
  /assertion
 
 Good enough.  I should probably point out that the GPL
 (in the U.S.A., where copyright is routinely resolved as
 a contractual issue, and, if both parties have agreed to it)
 would be treated as and agreement under contract law,
 and not the contract.  At least, that's my understanding of
 § 1-201 of the UCC.

Nitpick: copyright is not routinely resolved as a contractual issue,
in the US or anywhere else.  The validity and scope of a copyright
_license_ are contractual issues.  Copyright infringement is a
statutory tort in contemporary common law systems.

 http://www.law.cornell.edu/ucc/1/1-201.html

That's a nice reference to have.  As I read it, agreement is an
intermediate stage on the way to contract -- after any provisions
implied by conduct, etc. have been construed, but before any statutory
overrides have been applied.  The bare GPL -- its text, from Section
0 to Section 12 -- is an offer of contract.

Note, by the way, that the Preamble to the GPL doesn't talk at all
about trying to tilt the playing field in favor of free programs that
link against GPL components.  The closest it comes is in this
paragraph:

quote
 When we speak of free software, we are referring to freedom, not
price. Our General Public Licenses are designed to make sure that you
have the freedom to distribute copies of free software (and charge for
this service if you wish), that you receive source code or can get it
if you want it, that you can change the software or use pieces of it
in new free programs; and that you know you can do these things.
/quote

Use pieces of it in new free programs certainly sounds to me like
fragmentary cut-and-paste, not linking to components that are
themselves separately identifiable works.  The preamble is in any case
explicitly excluded from the Terms and Conditions of the GPL, so its
text isn't a binding part of the agreement; but it reinforces the
claim that a licensee can reasonably believe that he is accepting its
obligations of return performance exclusively with respect to
derivative works.  Contracts are construed against the offeror, etc.

As a reminder:  I favor the use of the non-crack-smoking GPL on a much
broader basis than it is used today.  I would like to see all open
source projects, FSF and otherwise, relicensed exclusively under the
GPL so that we can roll up our sleeves and refactor the corpus without
worrying about whose chocolate winds up in whose peanut butter.  I
believe that the FSF's bullshitting about copyright law is the main
obstacle to that happening in today's software world.

 If you want to be technically correct, I think you could
 call it a license, or even a license agreement.  (Though,
 license agreement probably implies that an agreement
 has been made -- which needn't be true in all contexts.)

No, a license is an individual provision in a contract, whether
explicit or implied.  There's an asterisk in there about unilateral
contracts, estoppel, etc., but none of that applies to the GPL, which
specifies ample return performance to constitute consideration.  See
my comments and citations in
http://lists.debian.org/debian-legal/2005/01/msg00621.html .  License
Agreement, if it means anything, means an agreement which contains a
license as one of its provisions.  IANAL, etc.

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

On 5/17/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
 As a reminder:  I favor the use of the non-crack-smoking GPL on a much
 broader basis than it is used today.  I would like to see all open
 source projects, FSF and otherwise, relicensed exclusively under the
 GPL so that we can roll up our sleeves and refactor the corpus without
 worrying about whose chocolate winds up in whose peanut butter.  I
 believe that the FSF's bullshitting about copyright law is the main
 obstacle to that happening in today's software world.

I'm not convinced that the crack smoking argument is
relevant, or accurate.

So far, my impression of that argument is that it rests very
heavily on fine points of phrasing, but it also seems like
you apply it rather liberally to anyone who draws different
conclusions than you.

Your conclusions may or may not be correct -- ultimately,
if that's resolved at all, that will be resolved by a judge.
In the mean time... I don't really understand what points
you are trying to make -- even to know if and when I am 
presenting something which is even relevant to an 
argument you are presenting.  As a result, I don't 
understand what it is you're objecting to in the context 
of the FSF.

It seems as if every time I've attempted to restate
what seems to be your fundamental point, I've found
out that I was incorrect.  But, you are very emphatic
about how anyone who doesn't draw the same 
conclusions as you -- be they courts, lawyers,
or even merely myself -- has some very derogatory
labels applied in those cases.

Now, granted, there might be some chance that
I and others are indeed smoking crack, even though
I myself am unaware of this practice.  But that's 
certainly not the only possibility.

There is even the chance that you are
incorrect about something or another (though,
what that could be seems rather unclear,
since I don't know how to test your assertions,
nor, in many cases, what they are supposed
to mean -- consider the derivative and 
collective works are disjoint as a fairly
well discussed example).

 No, a license is an individual provision in a contract, whether
 explicit or implied.

Could you provide a citation on that?  This seems to 
conflict with the usages I'm familiar with, including
those in the urls you mentioned at 

 http://lists.debian.org/debian-legal/2005/01/msg00621.html 

You might be correct here about what license terms
are and are not, but even if you are I might be drawing
the wrong conclusion from your phrasing.  I'd be
more comfortable if I had this from some official
source.

Thanks,

-- 
Raul

Re: RES: What makes software copyrightable anyway?

On 5/17/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
The GPL is an offer of contract, no more and no less.

Ok... if you offer me the GPL as a contract, and I
accept, at that point the GPL is not the whole of the
contract but it's more than an offer. So I'm already
losing track of your point.

Ambiguities in contract terms are, by law in the US anyway, construed
against the offeror. GPL Section 0 defines a work based on the Program as a
derivative work under copyright law, and that's the only candidate
for definition of that phrase that is still standing after
construction. Hence obligations to provide the source code for a
work based on the Program are limited to the scope of a derivative
work.

Slow down. Has anyone even agreed to this contract?

If so, what did they agree to?

In particular, you've not showed that this ambiguity
is against the offeror

A noun-phrase, in and of itself, isn't for or against anyone.
You have to consider the term as a whole, with all it's potential
implications and then (if you're construing ambiguity in
someone's favor) latch onto the implication you want.

You do not get to extract random nouns and say this noun
favors me or this noun is a problem for me. That's
meaningless.

Under US law at least, a program that uses another program or library
through a stable published API is not a derivative work of the work it
uses.

Maybe. I'm not certain what requirements have to be established
to show that an API is stable and published.

There is plenty of basis for construing blanket authorization
to create collective works into the GPL, and no basis for declaring
that distro CDs are OK but statically linked programs are not.

That's an assertion. Given this assertion, you can't prove
that this assertion is true, though you can show that for
cases where this assertion is true, other issues would follow.

A fortiori, dynamically linked programs whose components are shipped in
separate packages, so that they are only combined at run-time, are
entirely exempt from claims of copyright infringement under 17 USC
117. So the Wicked Linker of Closed Programs to GPL Libraries (or GPL
Programs to OpenSSL) gets off scot-free.

Let's see, to get here you had to take a noun and construe it
as a term of a contract, you had to refer to a method of
resolution for which you've not yet provided the details, and
you had to make a broad assertion (which is really your
conclusion, but stated more generally).

I have no way of testing whether what you say is true.
I can't even discern the logic behind these statements.

... anyways, I inclined to give up about here.

Also, I'm not clear why you think, above, that the
GPL constitutes an offer of contract, and nothing
more or less, but (in the part i'm sniping), you think
that it can't be an offer of contract without construing
an offer of agency to grant sublicense.

I guess one of my biggest problems is that you claim
statements of yours are universal, use that universality
to make your point, then contradict that universality
when it would interfere with some other universal
statement you want to make. And yet, when I try
to talk about these apparent contradictions, you tell
me about how I'm misconstruing what you've said.

Ok, that's fine -- I don't understand what you really
meant to say. But, by the same token, I don't think
it's reasonable of you to expect me (or anyone
else) to understand what it is that you really meant
to say.

No, a license is an individual provision in a contract, whether
explicit or implied.

Could you provide a citation on that? This seems to
conflict with the usages I'm familiar with, including
those in the urls you mentioned at

http://lists.debian.org/debian-legal/2005/01/msg00621.html

Let's see... A non-exclusive license is a mere waiver of the right
to sue (De Forest Radio Telephone v. United States), that's a
provision in a contract.

Here's a more complete quote, from an earlier case:

'If a licensee be sued, he can escape liability to the patentee for the use
of his invention by showing that the use is within his license; but, if his
use be one prohibited by the license, the latter is of no avail as a
defense. As a license passes no interest in the monopoly, it has
been described as a mere waiver of the right to sue by the
patentee'-citing Robinson on Patents, 806 and 808.

What I'm not seeing here is a reason for thinking that the GPL is
not a license, nor a license agreement. Being able to
construe a license as an offer of contract does not make it
not be a license.

It's significant continuing performance (in re CFLC), that's a
provision in a contract.

Uh... are you referring to this:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=searchcase=/data2/circs/9th/9416960.html
?

If so, I think you're talking about the assignability of patent licenses
in bankruptcy court. I don't see that this has any direct

Re: RES: What makes software copyrightable anyway?

On 5/17/05, Raul Miller [EMAIL PROTECTED] wrote:
[snip]
 I guess I don't see the point of all this.

That much, at least, is clear to all observers.  Does anyone else have
any difficulty in following the flow of my argument as given, or in
finding ample support for it in the statutes and case law I have cited
over the last few weeks?

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

2005-05-17 Thread David Nusinow

On Tue, May 17, 2005 at 09:38:52PM -0700, Michael K. Edwards wrote:
 On 5/17/05, Raul Miller [EMAIL PROTECTED] wrote:
 [snip]
  I guess I don't see the point of all this.
 
 That much, at least, is clear to all observers.  Does anyone else have
 any difficulty in following the flow of my argument as given, or in
 finding ample support for it in the statutes and case law I have cited
 over the last few weeks?

I have had great difficulty, simply due to the sheer volume of text that
has spewed forth from your fingers, which makes your argument not only
difficult to follow, but completely saps any interest I might possibly have
in the subject. The simple observation that you seem unable to communicate
your thoughts concisely makes me feel like you haven't thought things
through particularly well.  In addition, much of your argument is caught up
in personal attacks that I have less than no desire to read. 

As a result of these and other things (the various thread-breaking RES
mails which aren't your fault, for instance) I've had great difficulty
maintaining the patience to not simply killfile every mail in this thread,
let alone follow the flow of your argument and read the original cases that
you cite.

 - David Nusinow


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Re: RES: What makes software copyrightable anyway?

On 5/17/05, David Nusinow [EMAIL PROTECTED] wrote:
 On Tue, May 17, 2005 at 09:38:52PM -0700, Michael K. Edwards wrote:
  On 5/17/05, Raul Miller [EMAIL PROTECTED] wrote:
  [snip]
   I guess I don't see the point of all this.
 
  That much, at least, is clear to all observers.  Does anyone else have
  any difficulty in following the flow of my argument as given, or in
  finding ample support for it in the statutes and case law I have cited
  over the last few weeks?
 
 I have had great difficulty, simply due to the sheer volume of text that
 has spewed forth from your fingers, which makes your argument not only
 difficult to follow, but completely saps any interest I might possibly have
 in the subject. The simple observation that you seem unable to communicate
 your thoughts concisely makes me feel like you haven't thought things
 through particularly well.  In addition, much of your argument is caught up
 in personal attacks that I have less than no desire to read.

That's mostly a fair critique, although I think you might find on
review that the personal attacks are more easily separated from the
substance of the argument than you imply.  May I ask you (and others
who bother to reply at this stage) a few questions?

Is the summary without case law in
http://lists.debian.org/debian-legal/2005/05/msg00341.html still not
sufficiently concise?

If it is sufficiently concise, is it difficult to follow in some other way?

If it is easy enough to follow, is it difficult to identify which bits
are assertions about law that need support in a given jurisdiction and
which bits are factual statements or internal logic?

If so, are there defects in the factual statements or internal logic,
or are there assertions about the law that you believe to be false
based on some particular case law or reputable commentator's public
statements?

If it is refined to the point that the answers to the above questions
are all No, and if the assertions about law are suitably footnoted
with support from statute and/or case law in a given jurisdiction, is
there anything left to discuss?

 As a result of these and other things (the various thread-breaking RES
 mails which aren't your fault, for instance) I've had great difficulty
 maintaining the patience to not simply killfile every mail in this thread,
 let alone follow the flow of your argument and read the original cases that
 you cite.

I would agree that there has been no flow to this argument as a
whole, which has bounced erratically from point of fact to point of
law to counterfactual example to set theory to mutual disparagement. 
But I would kind of like to come away from it with an articulate
summary and a sense of what is convincing and what isn't.

Cheers,
- Michael

Re: RES: What makes software copyrightable anyway?

2005-05-16 Thread Michael K. Edwards

On 5/14/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/14/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
  You would be referring to your excerpt from Sun v. Microsoft, I
  suppose -- a case to which I had previously drawn your attention, and
  whose import your myopic quotation (go back and look; I believe that's
  a fair word to use) got completely backward.  Specifically, you
  selected a fragment of the circuit court's summary of the district
  court's decision -- which the circuit court demonstrated to be
  incorrect, vacated, and remanded to the court of fact to try again.
  When I quoted the relevant two paragraphs of the appeals court's
  decision in reply, you copied the first sentence and said Exactly,
  completely ignoring the substance of the quoted paragraphs.
 
 From my point of view, I was dismissing them as tangential or
 irrelevant to the point I was making.

You really think that it's tangential or irrelevant that the one time
that you used a quotation from an appeals court to bolster your case,
you were actually quoting the error that the district court had made,
leading to the reversal of its decision?

 In that specific case, the appeals court was not claiming that the
 district court had drawn a conclusion which by its nature must
 be incorrect.  The appeals court was asserting that the district
 court had not adequately described its reasoning.

That's false.  The appeals court asserted that the district court had
failed to follow the prescribed procedure, which is to analyze the
validity and scope of the claimed license, and unless it can be shown
that the license did not apply (e. g., was terminated for material
breach or authorized copying but not derivation), to deny all claims
under copyright law.  And therefore the district court's judgment was
wrong.  Period.

  I'm not really trying to slam you here, which would be rather
  inappropriate given that I am choking on crow just at the moment.
  Rather, I am pointing out a specific case where you seem to have
  failed to follow the legal argument.  My assumption is that you are
  capable of so doing but have read highly selectively under fire.
 
 My impression here is that you're overgeneralizing.  I'll
 try to be more specific about some of the generalizations
 I think you've made which I think are incorrect, but first
 I'm going to make a general statements myself.  This
 needn't always true in all cases, but it's true enough that
 I think it's worth considering:
 
 The more text you need to quote from a court decision to
 make a point, the more specific the context is, to that case.

That is by no means necessarily true; there is a very clear
distinction in US law between points of fact and points of law, and
points of law are by definition not specific to the circumstances of
the case under review.  And in any case, I don't believe I've needed
to quote more than two paragraphs from any cited opinion in order to
apply it to the present discussion.

[snip]
 Likewise, a small body of existing case law grounded in
 the law of contracts (fair exchange) does not mean that
 the law of  torts (fair morals) is irrelevant.

Almost every case I have cited has involved both tort -- i. e., the
statutory tort of copyright infringement -- and contract law.  There
is a giant body of case law, from which I am quite confident you will
continue to be unable to extract any appellate decision from the last
century (and precious few decisions at district court level) which
does not follow the routine sequence of analysis I have described, and
which you can watch being followed in each appellate case cited as
evidence of where the boundary lies.

 In this case, the court itself had the opportunity to assert
 that the law of contracts must always apply in copyright
 cases.  They didn't make that claim.  Instead, they were
 careful to state that that claim needn't be true for the
 general case.  They were careful to allow that it might
 even be true in this case.  They limited themselves to
 asserting that the district court hadn't described their
 reasoning in this case.

You just aren't reading that correctly.  The appeals court spelled out
how and why the contract analysis must be performed in order to decide
whether the defendant's conduct fell within the scope of a valid
license -- invariably a term in a contract, written or implied -- and
vacated the district court's decision for failing to perform that
analysis.

  All right, let me be more precise.  Have you cited any case law in
  this entire discourse which I didn't cite to you first -- that is,
  have you added any case to the set of precedents under discussion?
 
 No, not in any of the threads this past week.
 
  And have you cited any case law which anyone other than yourself
  believes to actually support you on a point where we disagree?
 
 That's a red herring -- specifically it's an an attempt to use the
 bandwagon fallacy.

Oh, it doesn't _prove_ anything -- but it might just be a

RES: What makes software copyrightable anyway?

2005-05-13 Thread Humberto Massa Guimarães



This might be relevant if we planned on distributing only non-working copies 
of Quagga.

The copies of Quagga that Debian distributes are non-working; try to execute a 
Debian package...

Anyways, I'll repeat my earlier assertion: if working copies of Quagga do not 
use functionality specific to libssl then we're dealing with mere aggregation 
and are not violating the copyright.  This is true regardless of whether or not 
anyone believes the copyright is enforceable, and regardless of whether or not 
Quagga is dynamically or statically linked.

Learned my Technique of Proof by Repeated Assertion, don't ya? But you are 100% 
right: If Quagga doesn't use functionality specific to libssl, then we are not 
violating the copyright. Now, if it DOES use functionality specific to libssl, 
but not to the point where Quagga could be considered a derivative work of 
libssl, then... we are not violating the copyright.


--
HTH
Massa


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Re: RES: What makes software copyrightable anyway?

On 5/13/05, Adam McKenna [EMAIL PROTECTED] wrote:
 So what?  A user building a package locally has nothing to do with us.  If he
 violates the license by distributing said binaries, he is liable, not us.

This isn't nothing to do with us.  We've done practically all the work
needed for the user to build that package locally, and we've documented
how to do so.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

2005-05-13 Thread Adam McKenna

On Fri, May 13, 2005 at 02:06:23PM -0400, Raul Miller wrote:
 On 5/13/05, Adam McKenna [EMAIL PROTECTED] wrote:
  So what?  A user building a package locally has nothing to do with us.  If 
  he
  violates the license by distributing said binaries, he is liable, not us.
 
 This isn't nothing to do with us.  We've done practically all the work
 needed for the user to build that package locally, and we've documented
 how to do so.

Still, so what?  How is building the package locally equivalent to
infringement?

--Adam
-- 
Adam McKenna  [EMAIL PROTECTED]  [EMAIL PROTECTED]


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Re: RES: What makes software copyrightable anyway?

On 5/13/05, Adam McKenna [EMAIL PROTECTED] wrote:
 Still, so what?  How is building the package locally equivalent to
 infringement?

Why did Napster decide to offer a billion dollars to the
recording industry, to settle their copyright suit? 
Do you think they were just smoking crack?

Unlike us, they weren't even distributing the copyrighted 
material in question.

-- 
Raul

RES: RES: What makes software copyrightable anyway?

2005-05-13 Thread Humberto Massa Guimarães

De: Raul Miller [mailto:[EMAIL PROTECTED]
 On 5/13/05, Adam McKenna [EMAIL PROTECTED] wrote:
  On Fri, May 13, 2005 at 02:47:37PM -0400, Raul Miller wrote:
We have a license to distribute said material and we are
abiding by the terms of the license.  You might as well say
that book publishers are contributing to infringement
because books are so easy to photocopy.
  
   Except book publishers have hundreds of years of track record
   where books were not easy to photocopy.   So it's hard to see
   how you can draw this analogy.  What did book publishers do,
   recently, that they weren't doing before, that made books easy
   to photocopy?
  
   Also, Napster wasn't distributing anything in violation of any
   copyright licenses, so I don't see how this argument of yours
   shows that that analogy is irrelevant.
  
  But we are more like a book publisher than Napster.  We have a
  license to publish certain materials, and we do so.  What the
  user does with the materials after they receive them legally
  from us is both none of our business and out of our control.
 
 Are you claiming that we have a license to distribute the work
 based on the program Quagga which also contains and uses openssl?

I am. Debian does have a license (GPL) to distribute a work based on
Quagga (the debian version of Quagga, both the source and the binary
package). Debian is -- furthermore -- abiding to the conditions on
which that licensed was acquired, namely:

(2a) Debian put putting proeminent notices stating where it did
change the files and the date of such changes, in our changelogs;

(2b) Debian is redistributing said files under the terms of the GPL;

(2c) as Quagga is a daemon this does not apply;

(3a, combined with 3§2) when Debian distributes quagga.*\.deb, it
also distributes from the same web site or CD set quagga-.*\.dsc,
quagga-.*\.diff and quagga-.*\.orig.tar.gz.

These are the only conditions to redistribute a derivative work of
Quagga.

 
 If not, what are we discussing?
 
  If we were adding pointers to 'illegal' packages that random
  users have built to our web site, then you might be able to draw
  a comparison to Napster.  But we aren't (as far as I know).
 
 I'm not trying to claim that our case is identical to Napster.
 
 I'm trying to use Napster to show that we can't always divorce
 ourselves from actions our users take.
 
 As I understand it, action at distance is not sufficient to
 absolve us of responsibility.

Contributory infringment is something about the US law that I think
is absolutely insane.

Thank $DEITY we still don't have them.

Why? Because it's exactly like making a locksmith tool, or
publishing the material on how to pick a lock, illegal: the intent
of a tool is never clear. I produce 3 hours of security videos per
day, and the tool I use for archival of those videos (a DVD-writing
driver, with its writing software) is exactly the same tool that
permits me to copy Star Wars III. I use my how-to pick a lock to
open my own car in the 2 or 3 times a year I lock the keys in. And
so forth.

Even so, I do not believe distribution of a dynamically linked
Quagga with SSL enabled is a breach of the conditions of the GPL.

Not in Brasil, not in the EU, not in the USofA.

Unless Quagga's copyright holders say otherwise.

And most certainly I do not believe distribution of source code to a
possibly-SSL-enabled Quagga is a breach of the GPL, either.

And I made my points ad exaustam about that.

--
HTH,
Massa

Re: RES: What makes software copyrightable anyway?

2005-05-13 Thread Adam McKenna

On Fri, May 13, 2005 at 03:49:28PM -0400, Raul Miller wrote:
 Actually, I have made that claim.  I've even shown the commands 
 to issue to obtain evidence that we do so.
 
 Mind you, this is a collective work, and we will also distribute the
 pieces individually.  But we sometimes don't distribute the work
 is not equivalent to we do not distribute the work.

The work you are speaking of does not exist in our archives, as far as I can
tell.  It can only be built on a user's machine.  The resulting work would
not be distributable.

   If not, what are we discussing?
  
  I thought we were discussing whether we can be held liable for the illegal
  actions of our users.
 
 I believe the answer to that question depends on whether we can be
 shown to have some responsibility for those actions of our users.

You seem to be saying that if we make it easy for a user to do something
which is completely legal (i.e. compile a package with SSL support) then we 
can somehow be held responsible for any and all subsequent illegal actions 
that the user takes with respect to the package (such as distribution).

   As I understand it, action at distance is not sufficient
   to absolve us of responsibility.
  
  IMO, you understand it wrongly.  But we can agree to disagree.
 
 In what way is my understanding wrong?
 
 If I fire a gun, am I absolved of responsibiility for damage done by
 that bullet?
 
 If I hire an assassin, am I absolved of responsibility for choices
 made by this hit man?

You're making completely ridiculous analogies.  If you want to be taken
seriously, you should try to stay on point.

--Adam


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Re: RES: What makes software copyrightable anyway?

On 5/13/05, Adam McKenna [EMAIL PROTECTED] wrote:
  Mind you, this is a collective work, and we will also distribute the
  pieces individually.  But we sometimes don't distribute the work
  is not equivalent to we do not distribute the work.

And yet somehow this work can get on the user's machine, starting
from a bare machine and Debian media.

 The work you are speaking of does not exist in our archives, as far as I can
 tell.  It can only be built on a user's machine.  The resulting work would
 not be distributable.

How do you account for it getting onto user machines?

-- 
Raul

Re: RES: What makes software copyrightable anyway?

2005-05-13 Thread Adam McKenna

On Fri, May 13, 2005 at 04:17:27PM -0400, Raul Miller wrote:
 On 5/13/05, Adam McKenna [EMAIL PROTECTED] wrote:
   Mind you, this is a collective work, and we will also distribute the
   pieces individually.  But we sometimes don't distribute the work
   is not equivalent to we do not distribute the work.
 
 And yet somehow this work can get on the user's machine, starting
 from a bare machine and Debian media.
 
  The work you are speaking of does not exist in our archives, as far as I can
  tell.  It can only be built on a user's machine.  The resulting work would
  not be distributable.
 
 How do you account for it getting onto user machines?

I'm done here.  You are obviously more interested in trolling or spreading
FUD than having a conversation.

--Adam


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Re: RES: What makes software copyrightable anyway?

On 5/13/05, Adam McKenna [EMAIL PROTECTED] wrote:
  How do you account for it getting onto user machines?
 
 I'm done here.

That's fine.

  You are obviously more interested in trolling 
 or spreading  FUD than having a conversation.

That's not.

-- 
Raul

Re: RES: What makes software copyrightable anyway?

2005-05-13 Thread Michael K. Edwards

On 5/13/05, Raul Miller [EMAIL PROTECTED] wrote:
 On 5/13/05, Michael K. Edwards [EMAIL PROTECTED] wrote:
   You've been rather consistently insulting for a number of days.
 
  Oh, please.  Like you've been Mr. Clean.  You have been rude,
  sarcastic, and dismissive from the very first message you contributed
  to this discussion (
  http://lists.debian.org/debian-devel/2005/05/msg00285.html ).
 
 I've been sarcastic, and dismissive of some arguments, but
 I don't think I've been derogatory of people.

I apologize wholeheartedly for apparently installed at the behest of
the FSF.  I had no adequate basis for that claim, which appears on
further research to be false.  In light of the contributions for which
you did originally earn a place on the technical committee, I agree
that it was derogatory and insulting and I am ashamed.

Otherwise, with the exception of the Mouth of RMS quip -- which, you
will note, came with a smiley, for what that's worth -- and my first
poorly edited response to your tort phantasm, which I immediately
acknowedged as over the top, I think the tone of my critiques has been
uniformly milder than yours.  (Well, I have referred once or twice to
crack-smoking contract interpretation, and once to swatting flies
with a Howitzer (TM), but you can hardly take that very seriously.) 
Perhaps I would do best to let others assess the relative degrees of
derogatory here, as well as the substance of the grounds for
derogation.

  You have at no time observed the punctilious standard of courtesy, of
  accuracy of quotation, and of acknowledgment of valid points with
  which I began, and which I maintained almost throughout our
  discussion.
 
 That's because I am not aware of them.
 
 You've provided quite a bit of text, but when I try and restate what you've
 said in simpler form you've insisted that I am incorrect.
 
 So, ok, I'm incorrect.  Me being incorrect doesn't mean that I understand
 the valid parts of whatever it is you have to say.

Again, perhaps I will let others judge both your understanding and
emphatically your accuracy of quotation.

   Adam, at least, appears to think that insulting statements aren't
   worth much of his time.
 
  Insult has at no point been the primary purpose of any of my
  statements.  Had it been, I assure you that you would know that you
  had been insulted.
 
 Perhaps you're unclear on something here:
 
 I do, in fact, know that I have been insulted.

If there are other specific statements which you found to be
insulting, please do let me know; it's possible that I have said
something else comparable to behest of the FSF for which a similar
apology is due.

Is this guy still chair of the technical committee?
  
   Ian Jackson is the chair of the technical committee.
  
   Here's how you could figure that out on your own:
 
  Wow!  Raul can use Google!  You may be surprised to know that FindLaw
  works in much the same way and can be used to obtain the means for
  legal reasoning that stands a chance of being valid in a US
  jurisdiction.
 
 I find that using google's search engine on findlaw's siet
 gives me better results than using findlaw's iinterface to
 google's engine.  If you think that means I'm using it
 wrong, you're welcome to make suggestions.

Are you using it at all?  Have you cited any case law in this entire
discourse, or given any indication that you have read the precedents
to which I have alluded, complete with convenient URLs?  Are you even
pretending that your arguments have been informed by research using
FindLaw or any other source of references to the actual, historical
law?

After his inane thinly veiled threats in
 http://lists.debian.org/debian-vote/2004/04/msg00090.html ?
  
   You see attempts to resolve problems as threatening?
 
  I see claims that glibc and GPL licensed parts of the toolchain might
  be undistributable without the sarge exception, coming from a member
  of the Technical Committee apparently installed at the behest of the
  FSF at the time that the Debian Constitution was first ratified, as
  thinly veiled threats.  Can you defend them on any other basis?
 
 First off, legal issues are not technical issues, though they may
 touch on some of the same points.
 
 From the technical committee point of view, the glibc is distributed in
 binary could only require intervention if the glibc maintainer were
 in a dispute with other maintainers and they couldn't resolve it
 between themselves.  Even there, it's not guaranteed to be a salient
 issue.

Don't try to bullshit me here.  That wasn't a discussion of
theoretical limits within the technical committee, that was a blatant
attempt to influence the outcome of a GR vote by raising the spectre
of FSF action against Debian.  You implied that reproducibility of the
build environment was a factor in GPL compliance -- a statement
perhaps applicable to the LGPL (as I articulated in
http://lists.debian.org/debian-devel/2004/12/msg01753.html ) but
rather hard

Re: RES: What makes software copyrightable anyway?