Re: PCT (Patents, Copyright, Trademark) policy and Open Source
Just a coupe of corrections: On Tuesday 27 January 2004 21:11, Robert Osfield wrote: The software patents directive which so far has been turned around at first vote in EP vote back in the summer which ratified that pure software is patentable, as per the 1974 Europen Patent Convention. Should read: The software patents directive which so far has been turned around at first vote in EP vote back in *September* which ratified that pure software is *not* patentable, as per the 1974 European Patent Convention. Regards, Robert. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
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Re: PCT (Patents, Copyright, Trademark) policy and Open Source
Hi Alex, On Wednesday 28 January 2004 15:19, Alexander Terekhov wrote: As an individual (being not at work and not part of some collaborative product development community [CPL terms are the best for it, I believe]), I release the code straight into the public domain, for example: www.terekhov.de/pthread_refcount_t/experimental/refcount.cpp I too have written ref counting code, open sourced of course. But this really doesn't have any relevance on whether SW-pats are good or bad, and nothing to do with whats going on in EU. Rober Osfield wrote: [...] The software patents directive which so far has been turned around at first vote in EP vote back in *September* which ratified that pure software is *not* patentable, as per the 1974 European Patent Convention. http://www.ipjur.com/2003_09_01_archive.php3 quote The misinformation campaign staged by the Eurolinux Alliance is really horrendous. /quote It is interesting that you quote one of the most pro software patent activists in Europe for nice unbiased analysis. To balance things here's a some background on the Author of this report Axel H Horns : http://swpat.ffii.org/players/horns/index.en.html Feel free to interpret what you think is the truth and from whom, I'll let the members of the list make their own opinions. I would suggest you take time to understand the concerns of others over software patents. We don't all have the luxury of being employed by a big corporations with big law departments. This doesn't make us less innovative or our opinions any less valid, but it does make use very aware of vulnerabilities and risks to our livelihood. Robert. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act preempts the GPL
Daniel and Russell, I've been following this discussion with a great deal of interest, and because I'm fairly inexperienced in the topic at hand, I hope that one or both of you will clarify something for me... On Wednesday 28 January 2004 03:44 am, daniel wallace wrote: It does not. The GPL imposes a condition on anyone who wishes to make a derivative work, viz. that the derivative work, if distributed at all, be distributed under the conditions of the GPL and no others. When you impose a condition on another person's exclusive legal rights you are asking that person to wave a legal right. After all, the right is exclusive and no one may impose a condition without that person's concious agreement to waive that right. It seems to me that what Russell is suggesting (or what one could suggest, even if Russell is not) is that the condition being imposed is not in fact a condition on an exclusive right -- the distribution of a derivative work--, as Daniel holds, but rather a condition on the permission to create derivative works in the first place. Am I correctly identifying the issue at stake here? Is the distinction valid, or are the two conditions identical? If they are not identical, how might one test the object of the condition? Anyone care to hold forth? Ryan Ismert Software Developer Sportvision, Inc. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: PCT (Patents, Copyright, Trademark) policy and Open Source
Robert Osfield wrote: [...] vulnerabilities and risks to our livelihood. If you don't intend to eliminate all IP laws (as an ultimate solution to the problem of vulnerabilities and risks), then something like www.pubpat.org is the way to go, I think. regards, alexander. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act preempts the GPL
1) There is an exclusive right of an original author to prepare (authorize) a derivative work. This is granted under section 106(2) of the Copyright Act. 2) Two distinct exclusive copyrights exist in an authorized derivative work. The preexisting author's copyright in the material which will form the basis for the derivative work and the modifying author's new copyright in his contributed modifying material. This arises from section 103(b) of the Copyright Act. The Copyright Act does not speak to the question of ownership of derivative works as a whole. This ownership question is left to the two authors to decide. If they cannot mutually agree concerning permission on the topic of distribution of the work as a whole there exists a stalemate. This is stalemate because each author has mutually exclusive rights in the work. 3) The act of authorizing a derivative work does not imply permission to copy and distribute the original authorizing authors preexisting material. This copying and distribution right stems from section 106(3) which is a separable right, distinct from authorization. 4) The modifying author has exclusive rights in his newly created contributed material equivalent in nature to the preexisting authors rights. These rights do not extend in scope to the preexisting author's material. 5) To distribute an authorized derivative work you must have permission from each author for the right's granted under section 106(3) to them. One permission for the preexisting author's material and one permission for the modifying author's material. 6) When you have two disjoint, mutually exclusive awards of copyrights the only way to secure both permissions under section 106(3) is by way of a mutually binding agreement of both authors for waiver of their exclusive rights. It is not possible to do this with a unilateral permission from just one author. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act preempts the GPL
daniel wallace scripsit: When you impose a condition on another person's exclusive legal rights you are asking that person to wave a legal right. After all, the right is exclusive and no one may impose a condition without that person's concious agreement to waive that right. Very good. But the maker of the derivative work is in no position to attack the GPL, for absent the GPL he has no license to the original work at all. At best, as I said, he could claim that the original owner is estopped from changing from the GPL to a more restrictive license or withdrawing it altogether, at least as regards his rights. Which is a Good Thing. In order to secure the modifying author's permission to distribute his work in the derivative copyright work, a binding legal form must be implimented. You said that before, but as far as I can see there is no warrant for it. The right to distribute (as opposed to the right to create) derivative works is not one of the enumerated exclusive rights; it belongs fully to the (licensed) creator of the derivative work. -- Andrew Watt on Microsoft: John Cowan Never in the field of human computing [EMAIL PROTECTED] has so much been paid by so manyhttp://www.ccil.org/~cowan to so few! (pace Winston Churchill)http://www.reutershealth.com -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
The Copyright Act supports the GPL
(Changing subject line -- I don't want to be seen as agreeing with the old one ;-) On Wed, 28 Jan 2004, daniel wallace wrote: It does not. The GPL imposes a condition on anyone who wishes to make a derivative work, viz. that the derivative work, if distributed at all, be distributed under the conditions of the GPL and no others. When you impose a condition on another person's exclusive legal rights you are asking that person to wave a legal right. It is not a legal right to be able to create a derivative work without permission of the copyright holder, nor is it a legal right to distribute a work without the permission of the copyright holder. If I take a Hollywood movie, create a laugh track where I think something funny happened, it is not my right to distribute the new combined work. I still have copyright on my own laugh track, and I can license/distribute that laugh track in (almost - see Note 1) any way I want, but I was not magically granted any rights against the original movie by creating this laugh track. If this new movie that is a combination of my work (the laugh track) and the Hollywood work (the original movie) is to be distributed it will only be under license conditions that *BOTH* the original copyright holder and I agree to. In the case of commons-based peer production (Free/Libre and Open Source Software, whatever you want to call it) we skip all the expensive lawyers negotiating this agreement, and instead just stick to compatible licensing. This accomplishes the same goal of being able to distribute the combined work, but without all that legal expense. There is nothing magical or opposed to the Copyright Acts here (I live in Canada and our act is different than yours). It is just a novel way of utilizing the rights already expressed in the copyright act to seek material rewards from our works in ways other than monopoly-rent-seeking. These are ways which facilitate much faster creation/innovation without all the expensive lawyers, vulture capitalists and other middle-men slowing things down. Please don't fall for the SCO/IBM/Microsoft FUD on this topic. Their interests are not our interests, and each has reasons for wanting people to be distracted by arguments suggesting that Open Source is somehow incompatible with copyright. Be very careful quoting IBM as representing Open Source views or the Open Source legal interpretation of licenses as they have interests very different than that of the Open Source community. An enemy of an enemy is not necessarily a friend. Whether IBM or SCO win that case is not of concern, but having the law side with either of them in their desire to infringe our creative rights is a great concern. ---cut--- Note 1: In countries that fully recognize moral rights in copyright like Canada, the copyright holder may be able to stop you from independently commercializing your laugh track. If customers combine the two in their homes it may be seen as damaging of the integrity of their work. This is an unlikely situation given the lack of reward the copyright holder would get for doing this (it would cause them more harm than good), but the legal instruments to do that are there. To see an example of a Canadian moral rights case, see: Galerie d'Art du Petit-Champlain v. Theberge, (2002) SCC 34 http://www.google.ca/search?q=Theberge+OR+Th%E9berge+site%3Adigital-copyright.ca Law student Jason Young wrote: I would agree with the SCC's narrow reading of s. 28.2(1) of the Act in Theberge: the important feature of moral rights in the present statute is that the integrity of the work is infringed only if the work is modified to the prejudice of the honour or reputation of the author --- Russell McOrmond, Internet Consultant: http://www.flora.ca/ Governance software that controls ICT, automates government policy, or electronically counts votes, shouldn't be bought any more than politicians should be bought. -- http://www.flora.ca/russell/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act preempts the GPL
Perhaps these comments from the annointed version of the Copright Act will clarify things: HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94-1476 Section 103 complements section 102: A compilation or derivative work is copyrightable if it represents an ''original work of authorship'' and falls within one or more of the categories listed in section 102. Read together, the two sections make plain that the criteria of copyrightable subject matter stated in section 102 apply with full force to works that are entirely original and to those containing preexisting material. Section 103(b) is also intended to define, more sharply and clearly than does section 7 of the present law (section 7 of former title 17), the important interrelationship and correlation between protection of preexisting and of ''new'' material in a particular work. The most important point here is one that is commonly misunderstood today: copyright in a ''new version'' covers only the material added by the later author, and has no effect one way or the other on the copyright or public domain status of the preexisting material. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: The Copyright Act preempts the GPL
I think Daniel makes an interesting point. But let me ask since you emailed me your conversations. Who is the original owner of Linux? kb -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Wednesday, January 28, 2004 1:23 PM To: daniel wallace Cc: [EMAIL PROTECTED] Subject: Re: The Copyright Act preempts the GPL daniel wallace scripsit: When you impose a condition on another person's exclusive legal rights you are asking that person to wave a legal right. After all, the right is exclusive and no one may impose a condition without that person's concious agreement to waive that right. Very good. But the maker of the derivative work is in no position to attack the GPL, for absent the GPL he has no license to the original work at all. At best, as I said, he could claim that the original owner is estopped from changing from the GPL to a more restrictive license or withdrawing it altogether, at least as regards his rights. Which is a Good Thing. In order to secure the modifying author's permission to distribute his work in the derivative copyright work, a binding legal form must be implimented. You said that before, but as far as I can see there is no warrant for it. The right to distribute (as opposed to the right to create) derivative works is not one of the enumerated exclusive rights; it belongs fully to the (licensed) creator of the derivative work. -- Andrew Watt on Microsoft: John Cowan Never in the field of human computing [EMAIL PROTECTED] has so much been paid by so many http://www.ccil.org/~cowan to so few! (pace Winston Churchill) http://www.reutershealth.com -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act supports the GPL
Russell McOrmond scripsit: If I take a Hollywood movie, create a laugh track where I think something funny happened, it is not my right to distribute the new combined work. Nobody disputes that. But Daniel is claiming that if you *do* in fact have permission to create the movie + laugh track, that you *also* then need further permission to distribute it. I deny this. Once you have lawfully prepared your derivative work, you may distribute it on your own terms; what the GPL does is prevent your work from being licensed if you distribute it other than under the GPL, making the creation of the derivative work not lawful. -- John Cowan [EMAIL PROTECTED] www.ccil.org/~cowan www.reutershealth.com If I have seen farther than others, it is because I am surrounded by dwarves. --Murray Gell-Mann -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act preempts the GPL
daniel wallace scripsit: The most important point here is one that is commonly misunderstood today: copyright in a ''new version'' covers only the material added by the later author, and has no effect one way or the other on the copyright or public domain status of the preexisting material. Indeed. Which is as much to say that multiple derivative works can exist from a single original without interfering with each others' copyrights, and a derivative work made from a public domain work does not prevent other people from making their own derivative works from the same P.D. work. license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- John Cowan[EMAIL PROTECTED] http://www.reutershealth.com http://www.ccil.org/~cowan Yakka foob mog. Grug pubbawup zink wattoom gazork. Chumble spuzz. -- Calvin, giving Newton's First Law in his own words -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: PCT (Patents, Copyright, Trademark) policy and Open Source
On Wed, 28 Jan 2004, Alexander Terekhov wrote: Robert Osfield wrote: [...] vulnerabilities and risks to our livelihood. If you don't intend to eliminate all IP laws Please stop trying to prove Richard Stallman correct by abusing the term Intellectual Property to suggest that you are either for IP, or against IP. http://www.fsf.org/philosophy/words-to-avoid.html#IntellectualProperty Patents, Copyrights and Trademarks are self contradictory (if you offer more protection to one group you are taking that protection *AWAY* from another) and are a balance between competing interests. Sometimes, just sometimes, the public interest is considered in this area of public policy (but unfortunately not as often as it should be). Patents and Copyrights are to inventors and creators like water is to humans: too little and you dehydrate and die, and too much and you drown and die. Only with the right balance can we survive. Hopefully most people will see through attempts to drown us, and instead work with us to try to create the right balance between competing interests that best serves the entire software sector (software manufacturing and FLOSS) as well as the public good. (as an ultimate solution to the problem of vulnerabilities and risks), then something like www.pubpat.org is the way to go, I think. This is like thinking that the solution to nuclear weapons in the hands of bad people is to have more nuclear weapons in the hands of good people (recognizing of course that who is bad and who is good is an extremely subjective and political determination). The problem is that patent pools and expensive fights against the extremely high number of poor quality patents in information processes only works for organizations with a lot of money (Like IBM) or some sort of benefactors of those monied special interests. Threats and chills on innovation are not reduced by this, and the only real solution is non-proliferation treaties to try to rid us of the problem in the first place. http://www.pubpat.org/ is not a solution to the information process patent problem, but I would agree it will help in subject matter areas where patent policy is mostly helpful but poor patents still get in. The first part of recognizing the problem we are trying to discuss here is to recognize that those who are against information process patents are not necessarily against patents in other sucject matter. We just believe that the logic and justification behind patent policy fails in some of the recently expanded subject matter areas. Subject-matter independent economic analysis is needed, and this analysis is currently not being done. Those who support patents in other subject matter should be helping us with these subject-matter independent analysis as the integrity of the entire patent system is being questioned because of improper expansion of patent policy into bad subject matter areas. Try this out: Offer the software community the justifications for patents, and we will explain why this doesn't apply to information processes like software. Here are just two of the most common ones and one possible response: Justification: the alternative to patents is trade secrets where we never learn about the invention. Patents get inventors to disclose the invention so that it is available to the public after the term of the patent, in exchange for a temporary monopoly. Response: distributed software is already published and not a trade secret. Whether the software is Open Source or not, the right to reverse engineer to create compatible products means that the 'invention' is never secret. In the case of many existing software patents the distributed software (disassembled) still provides more disclosure of the invention than the legalistic wording of the patents do. Non-distributed software embedded in internal processes (such as software that controls a robot to manufacture something) is a very separate situation. In this case if the process is patentable it is patentable regardless of the existence of the software (software neither adds to nor subtracts from the patentability of an invention). That does not mean that the software alone taken outside of the context of that manufacturing process should be patentable -- that is what the per say talks about, and the concept is quite simple even if obfusticated by those who wish to expand patent policy to information processes. Justification: long expensive up-front RD needs temporary monopoly to recoup capital costs. Response: I think FLOSS and small-business software manufacturing software authors (including shareware and freeware) have always tossed this idea out the door. Network effects and first mover advantage are often far more effective than a patent can be in gaining market share, and these effects apply equally in a free market sense to the entire sector and not just the largest players. As we move from
Re: The Copyright Act preempts the GPL
Ken Brown scripsit: I think Daniel makes an interesting point. But let me ask since you emailed me your conversations. Who is the original owner of Linux? Well (to be Clintonesque), that depends on what you mean by Linux. I'll assume you mean the kernel. It also depends on whether a court views Linux as a derivative work (in which case the original owner is Linus, questionless), a joint work, or a collective work. My guess would be that it's one of the latter two possibilities. -- John Cowan http://www.ccil.org/~cowan[EMAIL PROTECTED] You tollerday donsk? N. You tolkatiff scowegian? Nn. You spigotty anglease? Nnn. You phonio saxo? Nnnn. Clear all so! `Tis a Jute (Finnegans Wake 16.5) -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act preempts the GPL
Ryan Ismert scripsit: It seems to me that what Russell is suggesting (or what one could suggest, even if Russell is not) is that the condition being imposed is not in fact a condition on an exclusive right -- the distribution of a derivative work--, as Daniel holds, but rather a condition on the permission to create derivative works in the first place. I agree with this characterization completely, and assert that there is no such exclusive right to distribute derivative works (or rather that there is such a right, but it's the maker of the derivative work who has it). -- Business before pleasure, if not too bloomering long before. --Nicholas van Rijn John Cowan [EMAIL PROTECTED] http://www.ccil.org/~cowan http://www.reutershealth.com -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: PCT (Patents, Copyright, Trademark) policy and Open Source
On Wednesday 28 January 2004 17:59, Alexander Terekhov wrote: Robert Osfield wrote: [...] vulnerabilities and risks to our livelihood. If you don't intend to eliminate all IP laws (as an ultimate solution to the problem of vulnerabilities and risks), then something like www.pubpat.org is the way to go, I think. I certainly wish to eliminate all Intelectual Property laws, but I do believe in appropriate Intelectual Property laws. I don't believe that Software Patents are good for the Software Industry or Consumers, but I believe very strongly in Copyright law's applicability to the Software Industry. We *publish* our works which Copyright is designed for and fits pefectly. I welcome the help that Public Patent Foundation might provide in reducing the harmful affects of in appropriate Patenting, but its gotta be said this is a band aid rather than a cure for the problems that Software Patents can bring. Fixing the Directive's in European to ensure that pure Software and Business Methods arn't Patentable in Europe and elsewhere is very much preferable and effective as its cures the problem at the outset, rather than try to fix it late and downstream. Robert. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act supports the GPL
On Wed, 28 Jan 2004 [EMAIL PROTECTED] wrote: Russell McOrmond scripsit: If I take a Hollywood movie, create a laugh track where I think something funny happened, it is not my right to distribute the new combined work. Nobody disputes that. But Daniel is claiming that if you *do* in fact have permission to create the movie + laugh track, that you *also* then need further permission to distribute it. There are two rights, and two situations that the GPL seeks to clarify. Granted the GPL could have used more clear language, but everything is still consistent with copyright law. The worries expressed in the original subject line do not seem to exist. If you modify an existing work then you need to worry about permission to create the derivative work. If you simply add to the existing then you need to get permission to distribute the works linked together. There are two separate rights and situations, and the permission/licensing is needed for both. In my movie analogy if I were to add a movie review to the end of the movie I would still need to get permission to distribute the whole tape. In this case the permission needs to be granted by both the copyright holder of the original movie and myself as copyright holder of the movie review in order for this new tape to be distributed. I can still license and distribute my movie review separately if I wanted to, or never distribute it at all, but if I wanted to link the two together (supply them on the same tape, etc) then there needs tob e compatible permissions from both copyright holders. In the case of Linux you already have several hundred copyright holders, so talking about a single original copyright holder doesn't have much meaning. Any new code added needs to be licensed (at least) in a license compatible with the licensing terms of *all* other contributors. If you were to violate the terms of those license agreements you would then be violating the copyright of hundreds of copyright holders, any of which can then sue you. This is part of the SCO case. They want to distribute a version of Linux under license terms that would violate the copyright of the hundreds of copyright holders in Linux. http://www.flora.ca/copyright2003/section92.html#sco Whether or not they are a copyright holder to a portion of the Linux kernel is largely irrelevant to the question of whether they could legally distribute Linux under licensing terms incompatible with the permissions of all the other copyright holders. Whether SCO holds copyright on a laugh track (derivative work) or a movie review (linked work), or copyright on nothing at all, any attempt to distribute the works of all these other copyright holders outside the terms of a copyright permission is an infringement of the copyright of the several hundred copyright holders to components of Linux. And just to make things that much more interesting ;-) The multiple-compatible-licenses http://www.fsf.org/licenses/license-list.html#GPLCompatibleLicenses, multiple contributors aspect of Linux makes things confusing. If I wanted to license my contributions (new code, not modifications to old code!) to the Linux kernel under a BSD license I could do so. The Linux project could distribute my contribution as part of the whole program and, since all licenses to all contributions are compatable, everything is fine. Then SCO comes along and wants to distribute their derivative of the Linux kernel under a GPL incompatible license. In this case the contributions that were under the BSD license may not in fact have their copyright infringed, only those who had contributed with licenses which disallow derivatives to be licensed differently. SCO is able to have a GPL incompatible license that is still BSD compatible, infringing the copyright of some copyright holders in Linux but not others. Analogies are great when there is only two copyright holders involved, but real life is never as simple as an analogy ;-) --- Russell McOrmond, Internet Consultant: http://www.flora.ca/ Governance software that controls ICT, automates government policy, or electronically counts votes, shouldn't be bought any more than politicians should be bought. -- http://www.flora.ca/russell/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: PCT (Patents, Copyright, Trademark) policy and Open Source
Another interesting read is the U.S. Federal Trade Commission reaserch into patent policy and competition policy, you find extracts at: http://www.ffii.org.uk/ftc/ftc.html The conclusion are that in the software sector competition is much more important factor in driving innovation than patent protection. Robert. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: The Copyright Act preempts the GPL
Well, if everything else is a derivative...then how can anyone claim to be the original owner? I mean how many original owners can you have? There can only be one, whether the license says you can transfer it to 10,000 people...right? So help me understand your earlier point. To charge that someone has violated a copyright, doesn't the original owner have to make the charge? Otherwise, we don't know where the true property rights started right? kb -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Wednesday, January 28, 2004 3:21 PM To: Ken Brown Cc: 'daniel wallace'; [EMAIL PROTECTED] Subject: Re: The Copyright Act preempts the GPL Ken Brown scripsit: I think Daniel makes an interesting point. But let me ask since you emailed me your conversations. Who is the original owner of Linux? Well (to be Clintonesque), that depends on what you mean by Linux. I'll assume you mean the kernel. It also depends on whether a court views Linux as a derivative work (in which case the original owner is Linus, questionless), a joint work, or a collective work. My guess would be that it's one of the latter two possibilities. -- John Cowan http://www.ccil.org/~cowan [EMAIL PROTECTED] You tollerday donsk? N. You tolkatiff scowegian? Nn. You spigotty anglease? Nnn. You phonio saxo? Nnnn. Clear all so! `Tis a Jute (Finnegans Wake 16.5) -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: PCT (Patents, Copyright, Trademark) policy and Open Source
(Copying Eric Raymond in case he would find this thread interesting -- not sure if he is a member of the license-discuss list) While the discussions of copyright and patent law and licensing might be seen as on-topic, I suspect we are really sliding off-topic for this list with this message. It does go to the whole justification of patent policy in information processes, and how this area of policy is being abused. I just wish the OpenSource.org site had more appropriate lists to be discussing this. On Wed, 28 Jan 2004, Ken Brown wrote: http://www.eweek.com/article2/0,4149,1462778,00.asp Russell, Have you read this article? What are your thoughts? I read it and many other references posted to other forums. To me it it is standard IBM FUD suggesting that creating a monopoly on a business model will somehow make more money in a given market sector. The reality is that there is more money to be made in a free market where any entrepreneur can set up their own business. As a proponent of free market economics (free as in free market, not as in free beer) I strongly oppose business model and other information process monopolies. Having a business model monopoly does mean that the employees of the monopoly may appear to make more money given they don't have free market competition, but it is harmful to the economy as a whole. Great if you want to work for IBM, but I am an entrepreneur who wants to work for myself. I see this as yet another attempt by IBM to try to claim ownership over something in order to slow down a transition in the economy which IBM otherwise cannot control. This transition would force them to compete in a free market, including compete for highly competent employees who have far more options in a free market. I wish Eric Raymond would get as upset about this as he does the Microsoft Memos and write a new Halloween document about it. I agree that It Ain't Necessarily SCO, but think that we should stop staring at Microsoft to the point of not noticing what IBM is doing. Note: If all IBM wanted to do is prevent Microsoft from getting a patent on this method they could simply very publicly publish prior art. The suggestion some have made that IBM did this to protect the movement from Microsoft is rather amusing. If it were not for IBM lobbying for the creation of information process patents we would not likely have patents in this subject matter to need protection from in the first place. IBM was already pushing for information process patents back in the days when Microsoft was still on our side opposing software patents. http://swpat.ffii.org/players/microsoft/ --- Russell McOrmond, Internet Consultant: http://www.flora.ca/ Governance software that controls ICT, automates government policy, or electronically counts votes, shouldn't be bought any more than politicians should be bought. -- http://www.flora.ca/russell/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The Copyright Act preempts the GPL
Ken Brown wrote: Well, if everything else is a derivative...then how can anyone claim to be the original owner? I mean how many original owners can you have? There can only be one, whether the license says you can transfer it to 10,000 people...right? Why can't there be more than one? Why can't there be 10 or 10,000? I've collaborated with others on both fiction and non-fiction works. In many cases there is no single, original owner for a program, story or musical work. Who owns a piece of improvisational jazz created live by a group of five or six (or 20 or 50) musicians? So help me understand your earlier point. To charge that someone has violated a copyright, doesn't the original owner have to make the charge? Otherwise, we don't know where the true property rights started right? I have trouble with this endless emphasis on true property rights and attempts to squeeze every possible penny out of every transaction. I create original articles and stories -- what some would call intellectual property -- for a living (and make a pretty decent living at it), but I am old enough to remember the days when Selfishness and Greed were considered sins -- and mortal ones, at that. God and I still believe they are. We are obviously out of step with the times, aren't we? - Robin -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Fwd: The Copyright Act preempts the GPL
Wow, I have seldom seen hair sliced so thinly! Caveat. I am not a US lawyer. I am not a lawyer at all. This is not legal advice. From: daniel wallace [EMAIL PROTECTED] How then, do you permit a derivative work to be distributed? This is usually done at the time the preexisting author authorizes the derivative work by way of a contractual agreement of some form with the contributing author. Let's introduce a third character, theDistributor. The derivative work can't be distributed without consent of the first author (and the second author too). theDistributor has to have those consents. Nobody else. The two authors don't have to agree about anything at all. Haircuts. The time of day. Who is President. (Actually the work probably _can_ be distributed anyway, but if that violated their rights under copyright they could ask for injunctive relief to stop theDistributor. Maybe not so likely in the US now, what with DMCA et al it might be a crime.) They may have to agree somehow, somewhen about the creation of a derivative work, but that has nothing to do with distribution. The GPL purports to authorize the distribution of derivative works within its four corners. It gives theDistributor the first author's consent for the derivative work to be published. It also _requires_ the second author to permit theDistributor to freely distribute any derived work, as a condition of authorizing the creation of a derivative work etc.. Or at least that's how I remember it. So both authors have given theDistributor permission to distribute the work. That's all that's needed. There is _no_ requirement for an agreement between the authors in re distribution. There may be one in re creation of the derivative work, but that's another story. However you choose to describe the GPL... contract, license, unilateral or bare A licence. A grant in deed. Not a contract, obviously - no consideration, no offer, no acceptance, a zillion other reasons too. As argued above, the only way this is possible is through a bilateral legally binding agreement between the two mutually exclusive authors that are present in a modified work. Such an agreement would be one way to go about it - and I could argue that that's what the GPL in fact does anyway - but it is not a _requirement_ for distribution. -- Peter Fairbrother -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: The Copyright Act preempts the GPL
On Wed, 28 Jan 2004, Ken Brown wrote: Well, if everything else is a derivative...then how can anyone claim to be the original owner? I mean how many original owners can you have? There can only be one, whether the license says you can transfer it to 10,000 people...right? You have to ask the question: what is this it that you are looking at? Is it a program made up of many modules, subroutines and lines of code? Is it one of those lines of code or a subroutine, or a source (.c, .h or .py) file? Linux is made up of many modules where some first owner of copyright created that module and then linked it together with other modules. Other contributions involved changing these modules with the permission (granted by the license) to create derivative modules. There may be a first owner of the Makefile used to link everything together, and in the case of Linux that Makefile is likely under the copyright of Linus Torvalds. That is not certain, however, as someone else could easily have started from scratch at any point and replaced Linus' Makefile. The ability to easily start from scratch and replace entire modules and relink without having to get lawyers involved is part of what allows popular Open Source projects to mature so quickly. Each module may have its own first owner of copyright and many creators of derivatives from that original work. These modules are then linked together to create a much larger thing called a program. So help me understand your earlier point. To charge that someone has violated a copyright, doesn't the original owner have to make the charge? Otherwise, we don't know where the true property rights started right? The creator of the derivative work has copyright on their own work as well. Every copyright holder -- of original works or of an authorized derivative works -- can sue for infringement of their copyright. In a complex linking of modules such as Linux there are many original copyright holders and many copyright holders of derivatives so there are many people who can make the charge of copyright infringement in relation to the part of Linux that they hold copyright over. It is interesting, but peer production opens up a whole new possibility of class action copyright infringement cases. This is an important thing to understand with new models of knowledge production such as FLOSS. We are no longer talking about simplistic cases where whole programs are created by or otherwise under the copyright of one entity (whether it be a natural person or a corporation). We are dealing with situations where a program is made up of modules with each module possibly having its own paternity and history that is entirely different from all other modules that are then linked together. In the case of some of the recent examples of corporate contributions to Linux these modules were actually written for other kernels and then, as the legitimate copyright holder, they ported these modules to work with Linux. SCO claims that if the original kernel was the UNIX kernel that they now (possibly?) hold copyright over that the copyright holder is not allowed to links this with Linux. For those parts that were modifications to original UNIX code that were 'derivative works' they have a case but that code is to my understanding not under discussion. For new modules that were authored SCO have no case at all (at least under copyright law) to claim the copyright holder of this new code is not allowed to license the code in as many different licenses and whatever license they wish. Copyright supports the concepts required for commons-based peer production, even though having to understand the complexities involved wasn't something that was as important in the past as it is today. When you have software manufacturing you still have many situations where there isn't a single copyright holder. Microsoft isn't the sole copyright holder of Internet Explorer as this is a derivative program (both derivatives of existing code and new code) from the Spyglass licensed versions of Mosaic that they started with. Microsoft is going to be the copyright holder of the (authorized) changes they made to the code, and new modules that Microsoft employees were first creators of. There may be a major copyright holder that then licenses modules from a third party and bundles it together to create a whole program. That program may have modules with tens of separate paternities being linked together and marketed. With a relatively small number of separate paternities the haphazard licensing arrangements of software manufacturing made with each copyright holder was still practical. With FLOSS and peer production you then step that up a few orders of magnitude to where you are talking about single programs and projects that have hundreds and soon likely thousands of separate paternities being linked together. With this many contributors the
