Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 9:41 AM, Bruce Perens br...@perens.com wrote: On 06/10/2012 10:49 PM, Rick Moen wrote: I believe this is entirely consistent with what I said, Bruce. You even said 'Read caselaw.' I think we need to come to grips to the fact that it may be possible for GPL software to be embedded within a proprietary software product a la NuSphere without the result being infringement. At least as long as they provide source and a license statement for the GPL part. If you go back to Progress Software (NuSphere) v. MySQL, the MySQL guys signed a contract with Progress without ever having it vetted by a lawyer. NuSphere had a reasonable assumption that they had a right to embed the program in their product. The MySQL guys messed up in a big way and were lucky to not have had to pay for it. To be clear, NuSphere did not embed MySQL in their product, rather they embedded closed source components into MySQL and shipped a modified MySQL without corresponding source. http://www.gnu.org/press/mysql-affidavit.html (MySQL specific part begins at §26) This is not comparable to the customary use of MySQL where some Java or PHP application uses MySQL as is, and over an API like JDBC to store data. It is true that MySQL AB used to interpret the GPL as covering also this use case. When buying Sun, Oracle has denounced this interpretation and was supported by Eben Moglen and Carlo Piana in doing so. (http://openlife.cc/blogs/2011/january/reposting-mark-schonewilles-blog-how-gpl-applies-mysql-use-cases ) Anyway, the NuSphere case was not an example of this use case. All that said, yes, if one takes the Using an API doesn't create derivative works to its extreme, then essentially the GPL and LGPL would be the same thing. Which would be a funny relevation after a couple decades of successful GPL enforcements and several companies building a successful business on a more strict interpretation of GPL / the law. henrik -- henrik.i...@avoinelama.fi +358-40-8211286 skype: henrik.ingo irc: hingo www.openlife.cc My LinkedIn profile: http://www.linkedin.com/profile/view?id=9522559 ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Bruce Perens (br...@perens.com): On 06/10/2012 10:49 PM, Rick Moen wrote: I believe this is entirely consistent with what I said, Bruce. You even said 'Read caselaw.' I think we need to come to grips to the fact that it may be possible for GPL software to be embedded within a proprietary software product a la NuSphere without the result being infringement. As I said, it was the particulars of the NuSphere case that made it pretty clearly copyright infringement. Defendent seems to have agreed, judging from the hasty settlement on plaintiff's terms. Essentially, it comes down to creation of a new work. The judge would consider evidence and arguments presented about the nature of reuse, decide whether a new derivative work was created, and, if so, whether it incorporated substantials expressive elements of the reused work, then to what degree various affirmative defences apply, etc. I look forward to reading the the Google/Oracle judge's order dismissing claims that Google violated copyright on 37 Java API packages, having not yet had time to do so. I belive I heard that his holding is that Google wrote or commissioned independent code implementations of all 37, leaving only the question of whether the designs and names of the functions in the reference API packages are covered by copyright. He said they weren't -- which does not strike me as very surprising, given the uncopyrightabilty of names and the idea/expression dichotomy (patent/copyright division). Other than giving clarification that claiming an API is inherently copyrightable isn't going to fly, it doesn't seem likely to cast light on other areas of copyright law. In particular, it cases none on what suffices to create a new work and what is a derivative work. If you go back to Progress Software (NuSphere) v. MySQL, the MySQL guys signed a contract with Progress without ever having it vetted by a lawyer. NuSphere had a reasonable assumption that they had a right to embed the program in their product. The MySQL guys messed up in a big way and were lucky to not have had to pay for it. Naturally, one _can_ contract away the right to enforce copyright. But, if that is the deciding factor, then you can no longer learn much of anything from the copyright aspects of the case. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/11/2012 12:18 AM, Henrik Ingo wrote: To be clear, NuSphere did not embed MySQL in their product, rather they embedded closed source components into MySQL Per Eben's testimony, the Gemini storage engine, using the MySQL API for storage engines. Which would be a funny relevation after a couple decades of successful GPL enforcements and several companies building a successful business on a more strict interpretation of GPL / the law. I'm not going to advise people that they can mix GPL and proprietary software with impunity. And I will continue my own dual-licensing business. But I'm not going to be certain of my ability to prevail in court. attachment: bruce.vcf smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 10:37 AM, Bruce Perens br...@perens.com wrote: On 06/11/2012 12:18 AM, Henrik Ingo wrote: To be clear, NuSphere did not embed MySQL in their product, rather they embedded closed source components into MySQL Per Eben's testimony, the Gemini storage engine, using the MySQL API for storage engines. True, so still relevant for this thread. I just wanted to make a difference of X embedding MySQL (the common case) vs embedding Gemini into MySQL (there are less than 20 companies in the MySQL space for whom this is relevant). henrik -- henrik.i...@avoinelama.fi +358-40-8211286 skype: henrik.ingo irc: hingo www.openlife.cc My LinkedIn profile: http://www.linkedin.com/profile/view?id=9522559 ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 12:43 AM, Bruce Perens br...@perens.com wrote: What legal theory would make a user of an API a derivative work if the API is not itself copyrightable? If there was a case like MySQL v. Nusphere without the contract, this is what I'd argue. Note I'd avoid saying derivative like the plague. I'd point out (assuming the following is true for sake of argument): There's ample documentation that the licensor intended this license not to reach compiled or collected works linking this software to proprietary components, and that extra licenses were required at that point. There's ample evidence the licensee was aware of all this. I'd then argue that whether or not it's a derivative work is not at issue. What is at issue is whether the licensor intended the license to allow the behavior in question and whether the licensee knew or should have known this. By distributing the code, they need copyright permission. That's not in dispute. Therefore, the behavior is outside the GPL and at least contract violation if not copyright violation. This may not be a derivative work but it's not really permitted by the GPL. Compiled/collected works require permission to and some of these are based on in the view of the GPL even if they are not based on in the way that term is used in copyright statutes. I don't know if that's a winning argument (assuming the ample documentation is there). But if I wanted to argue it, that's the case I'd make. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/11/2012 12:52 AM, Rick Moen wrote:
{scratches head} I think you must somehow be massively misreading what
I said. Perhaps you thought I'd expressed a view about using an API
(somehow) creating a derivative work? I didn't say anything of the sort.
It's regarding your statement:
it doesn't seem likely to cast light on other areas of copyright
law. In particular, it cases none on what suffices to create a new
work and what is a derivative work.
The point is that there's not /anything else/ in that body of law that
would make the proposed work derivative.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 05/06/12 17:59, Mike Milinkovich wrote: I don't think that the inclusion of MPL 2.0 in any way a bad decision. My assumption is that the Steward of the MPL requested that all significant references to the the MPL be modified to point to the new version. Similarly, the original list included both the CPL and the EPL. When the CPL was deprecated in favour of the EPL, the CPL was deleted from the list. I'd add that, given that the MPL 2 is used by both Mozilla and LibreOffice, two very substantial projects, I'd say it pretty much fits the criteria on its own merits even without support from the large body of MPL 1.1+ software out there. Gerv ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Gervase Markham wrote: I'd add that, given that the MPL 2 is used by both Mozilla and LibreOffice, two very substantial projects, I'd say it pretty much fits the criteria on its own merits even without support from the large body of MPL 1.1+ software out there. I fully agree with the general opinion here that MPL 2 is an important and widely-used license. I meant no disrespect to that or any other licenses when complaining about the list of popular licenses on the OSI website. However, what are the criteria to which you refer so that we can judge other licenses by the same criteria? /Larry -Original Message- From: Gervase Markham [mailto:gerv-gm...@gerv.net] Sent: Monday, June 11, 2012 8:06 AM To: license-discuss@opensource.org Subject: Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages On 05/06/12 17:59, Mike Milinkovich wrote: I don't think that the inclusion of MPL 2.0 in any way a bad decision. My assumption is that the Steward of the MPL requested that all significant references to the the MPL be modified to point to the new version. Similarly, the original list included both the CPL and the EPL. When the CPL was deprecated in favour of the EPL, the CPL was deleted from the list. I'd add that, given that the MPL 2 is used by both Mozilla and LibreOffice, two very substantial projects, I'd say it pretty much fits the criteria on its own merits even without support from the large body of MPL 1.1+ software out there. Gerv ___ License-discuss mailing list mailto:License-discuss@opensource.org License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 6/8/12 12:16 PM, Rick Moen r...@linuxmafia.com wrote:
Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu):
It amazes me that after all these years GPL proponents are still
professing willful ignorance as to why some permissive developers see a
difference between the two practices. Go figure.
I am not, and never have been, in any sense a 'GPL proponent', sir.
This conflict has always been between certain factions of the GPL camp and
certain factions of the BSD camp whatever you wish to identify yourself as.
Perhaps because a proprietary derivative doesn't impact the potential
pool
of open source contributors but a GPL derivative does?
Here's something interesting: I talk about copyleft, and about the
alleged '{relicensing|sublicensing}' of BSD works actually just turning
out to refer to creation of derivative works, and someone who wants to
argue with me starts talking about the GPL, as if there were no other
copyleft licences. This is peculiar at the bset of times, but doubly so
on the OSI's mailing lists.
This comment is disingenuous. Which other copyleft license is both
strongly copyleft and have over zealous proponents? Weak copylefts tend
not to have the same issues or frankly, personalities.
Moreover, this has nothing to do about licenses but the comment you made.
Anyway, a proprietary derivative permits _zero_ open source contributors,
right? Or did I somehow fail to understand what 'proprietary' means?
False. There have been numerous contributions to permissive projects from
proprietary derivatives and companies that provide contributors to
permissive projects. But that's not the point.
The point is that there is a finite pool of open source developers that do
this for fun on their own time. A proprietary derivative does not draw
upon this pool except occasionally when they hire someone full time.
Another open source fork does. And it's a double whammy. Not only might
some devs work on the fork but that code often never is usable by the
original. This is a point made many times over the years, something you
should be well aware of.
Perhaps it is human nature to be annoyed when some very vocal folks
claim
to be more free and that you should respect the spirit of their
license
but not actually reciprocate that freedom with permissive developers
or
the same level of respect?
_Stallman_ does that, but you seem to be confusing the merits of
licences with those of their authors. The meaning of each licence itself
is confined to its wording and its surrounding legal environment. By
contrast, interpersonal soap opera doesn't mean a thing.
I'm not confusing anything. I have nothing against the GPL or copyleft in
general. It simply annoyed me that you brought up that idiotic meme once
again. In this case it has nothing to do with Stallman and everything to
do with your own comment.
I provided this as another well worn example of why some BSD proponents
mind when a GPL project uses their code but not when a proprietary product
uses their code. You weren't commenting on the merit of licenses but the
merits of the opinions of other developers regarding the use of their code
in GPL projects.
That leads to nothing BUT interpersonal soap opera.
Nah, that's only been stated umpteen times over the many years among
various other reasons.
Yes, and I'm a BSD user from back to long before Net/2. Now that you've
trotted out your prejudices irrelevantly, it'd be nice, as I just got
through saying, if a few folks stopped assuming I'm new to these topics.
I didn't assume that. Frankly you should know better than to bring that
old nugget back up again as if you didn't understand why some folks feel
that way. For the same reason that BSD proponents largely gave up
childishly calling GPL the GNU Public Virus long ago. All this was gone
over a decade or two ago and made for a bunch of unnecessary bad blood
between the two camps.
So really, what was the point of you bringing it up yet again? Because
you thought you could get a snarky jab in there and no one would call you
on it?
Any other Friday that probably would have been true but as I stated, I was
in a bad mood.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu):
I am not, and never have been, in any sense a 'GPL proponent', sir.
This conflict has always been between certain factions of the GPL camp and
certain factions of the BSD camp whatever you wish to identify yourself as.
I am not a member of any 'GPL camp', either. Thank-you-very-much.
If you are having a difficult time addressing this subject without
attempting to cram other participants into ritualised ideological
positions, it's possible you should not discuss software licensing.
Or software.
Here's something interesting: I talk about copyleft, and about the
alleged '{relicensing|sublicensing}' of BSD works actually just turning
out to refer to creation of derivative works, and someone who wants to
argue with me starts talking about the GPL, as if there were no other
copyleft licences. This is peculiar at the bset of times, but doubly so
on the OSI's mailing lists.
This comment is disingenuous.
Disingenous? I point out you've just ignored the upthread context and
yanked the thread over to 'GPL' and you say I'm being dishonest? That's
a good bit of cheek.
Which other copyleft license is both strongly copyleft and have over
zealous proponents?
Who cares about the 'proponents'? That has nothing to do with the
antecedent topic.
Listen, you seem to want to have an ideological disputation with
someone. I'm neither interested nor suitable for that purpose. Have a
great day.
The point is that there is a finite pool of open source developers that do
this for fun on their own time.
Anyway, as I just got through saying to Ben Tilly: (1) People
can and do perform pretty much whatever screwball actions they wish to
perform with their own property. (2) You should take care to understand
all of the implications of any licence you use, because somebody else
definitely may, and you'll look really silly acting surprised.
When people start talking about the 'finite pool of open source
developers' on account of the unfortunate-for-the-speaker fact that some
of those developers choose to do something the speaker dislikes (but
that is lawful), I gently direct the speaker's attention to point #1.
I.e., get used to the idea that that 'finite pool' are not your staff
and are unlikely to do your bidding, unless perhaps you intend to hire
them.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 12:39:06PM -0700, Rick Moen wrote: Anyway, as I just got through saying to Ben Tilly: (1) People can and do perform pretty much whatever screwball actions they wish to perform with their own property. (2) You should take care to understand all of the implications of any licence you use, because somebody else definitely may, and you'll look really silly acting surprised. When people start talking about the 'finite pool of open source developers' on account of the unfortunate-for-the-speaker fact that some of those developers choose to do something the speaker dislikes (but that is lawful), I gently direct the speaker's attention to point #1. I.e., get used to the idea that that 'finite pool' are not your staff and are unlikely to do your bidding, unless perhaps you intend to hire them. I'm not particularly interested in the way the two of you are dancing around the subject of who's on what side of which ring (boxing or circus, whatever), but I figure it might be worth pointing out that I'm pretty sure nobody's claiming these hypothetical open source developers are anyone's staff, or complaining directly about them doing something legal. Rather, I think the complaint is about people making hypocritical statements about exactly the kind of behavior they exhibit with regard to source code appropriation, and about people pretending there is no difference between two different edge cases of license effects when, in fact, there is a difference. This may be getting buried under the language of disapproval. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 6/11/12 3:39 PM, Rick Moen r...@linuxmafia.com wrote: Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): I am not, and never have been, in any sense a 'GPL proponent', sir. This conflict has always been between certain factions of the GPL camp and certain factions of the BSD camp whatever you wish to identify yourself as. I am not a member of any 'GPL camp', either. Thank-you-very-much. If you are having a difficult time addressing this subject without attempting to cram other participants into ritualised ideological positions, it's possible you should not discuss software licensing. Or software. Again, whatever your self identification is, your comment and statement are those espoused by one of those camps over the years. Something that you are well aware of. Lets get back to the crux: A certain number of the BSD regulars remain deeply unhappy when those works state copyleft requirements, even though they're perfectly happy when derivatives of the same BSD works have proprietary licenses. Go figure. What was the value of this observation? What don't you understand, after all these years, about why some BSD regulars remain deeply unhappy regarding a copyleft vs being happy with a proprietary derivative? I'm finding it humorous that you don't like the idea of putting you in a camp when your original statement refers to BSD regulars. Friday I was annoyed. Today it's simply funny. This comment is disingenuous. Disingenous? I point out you've just ignored the upthread context and yanked the thread over to 'GPL' and you say I'm being dishonest? That's a good bit of cheek. Yes, disingenuous. That I state GPL is because historically that's been the license with which there has been conflict. If I am incorrect, perhaps you can cite for me which other copyleft license that BSD regulars have been unhappy with? There was no upthread context relevant to your observation about BSD regulars. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): Again, whatever your self identification is, your comment and statement are those espoused by one of those camps over the years. No, they most certainly are not. Kindly do not confuse me with some bunch of ideologue wankers. What was the value of this observation? That differently licenced derivatives in compliance with your requirements are seen as OK if proprietary and hence shut off from sharing under the same terms, but not OK if copyleft and hence shut off from sharing under the same terms -- which seems to me a prime example of failing to grasp _either_ of the two basic facts about copyright law and software I mentioned to Ben Tilly: (1) People can and do perform pretty much whatever screwball actions they wish to perform with their own property. (2) You should take care to understand all of the implications of any licence you use, because somebody else definitely may, and you'll look really silly acting surprised. Permitting any derivatives satisfying 2-clause, 3-clause, or 4-clause obligations means permitting _any_ derivatives satisfying 2-clause, 3-clause, or 4-clause obligations. If licensor didn't intend that, then licensor shouldn't have chosen the licence. _Unlike_ ideologue wankers, I have no wish to urge any particular licensing on anyone, and regard with particular distaste those who do. (In the general case, it involves someone else's property and is not really my concern at all.) As I very clearly stated upthread, I regard licences as legal instruments to implement the licensor's intentions. The intentions should logically dictate owner's licensing strategy: the only real tragedy is when people fail to understand their chosen licensing's natural and obvious consequences. I do feel no obligation to prove to you the 'value of this observation'. It suffices to me that it is correct to the best of my ability to determine, and relevant to the subject. Sorry you didn't like it. Have a nice day. Yes, disingenuous. I have no time for someone who gratuitously accuses me of bad faith -- and also no interest in arguing with you in the first place. Kindly go bother somebody else. Thanks. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 3:20 PM, Rick Moen r...@linuxmafia.com wrote: Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): Again, whatever your self identification is, your comment and statement are those espoused by one of those camps over the years. No, they most certainly are not. Kindly do not confuse me with some bunch of ideologue wankers. What was the value of this observation? That differently licenced derivatives in compliance with your requirements are seen as OK if proprietary and hence shut off from sharing under the same terms, but not OK if copyleft and hence shut off from sharing under the same terms -- which seems to me a prime example of failing to grasp _either_ of the two basic facts about copyright law and software I mentioned to Ben Tilly: (1) People can and do perform pretty much whatever screwball actions they wish to perform with their own property. (2) You should take care to understand all of the implications of any licence you use, because somebody else definitely may, and you'll look really silly acting surprised. Seeing these repeated references to my name is getting annoying. You made a comment about some BSD people. I offered an explanation of one mindset that leads to that situation. You came back with an argument that the mindset is wrong. Since I don't possess that mindset, and I have no interest in an argument, I didn't bother to respond. You like to take people to task who have assumed that you take one position or another which you don't. Please stop assuming that you enlightened me when you did not, and stop associating me with a position that I do not hold. Permitting any derivatives satisfying 2-clause, 3-clause, or 4-clause obligations means permitting _any_ derivatives satisfying 2-clause, 3-clause, or 4-clause obligations. If licensor didn't intend that, then licensor shouldn't have chosen the licence. People decide that particular licenses are right for themselves for all sorts of reasons. Often those reasons turn out to be mistaken, and then people tend to get upset. Many people who choose permissive licenses have a view that says that when you don't try to order people around with contracts, goodwill tends to get repaid down the road. That is, in addition to the explicit legal contract, they act as if there was an implicit social contract between them in the world; if they are generous then enough people will be generous back that things tend to work out. Most of the time this belief works. (That is why people continue to have beliefs like this.) Occasionally they are spectacularly wrong. That is, rather than trying to minimize harm when things go wrong, they try to maximize the benefit of things going right. If this is your goal, complicated legalese is unlikely to be appealing. Unhappiness can then arise when people who have released under a permissive license hoping to see reciprocal generosity down the road see their work improved and the improvements offered under a copyleft license. Legally nothing wrong has happened. Socially nothing wrong has been done in the world view of the person who made the improvements. But in the eyes of the person who originally released the software, you have failed to be generous back to them, and you have created a barrier to future generosity from people down the road who use the improved version. (Proprietary software creates less of a barrier because there is a single entity that may come to see generosity as being in their enlightened self-interest.) Again I am not describing this to say that I hold this view, or that you should agree with it. Quite the contrary. I am merely offering it for anyone who wants to understand what may be going through the head of a person who gets upset about something like this. _Unlike_ ideologue wankers, I have no wish to urge any particular licensing on anyone, and regard with particular distaste those who do. (In the general case, it involves someone else's property and is not really my concern at all.) As I very clearly stated upthread, I regard licences as legal instruments to implement the licensor's intentions. The intentions should logically dictate owner's licensing strategy: the only real tragedy is when people fail to understand their chosen licensing's natural and obvious consequences. If a license does what I want 90% of the time quite well, and fails 10% of the time, is it better or worse than a license that does something you find merely OK 100% of the time? You'll have no end of examples in that failing 10%, but on the whole there are some people who will still prefer that license, even though it can and does go wrong quite frequently. Again, not my point of view. But if someone has that point of view, it may make sense for them to select a license that does not protect them from situations that they would prefer not to see happen. Even though you may think it a tragedy that things keep on happening that they
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 03:20:12PM -0700, Rick Moen wrote: Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): Again, whatever your self identification is, your comment and statement are those espoused by one of those camps over the years. No, they most certainly are not. Kindly do not confuse me with some bunch of ideologue wankers. What was the value of this observation? That differently licenced derivatives in compliance with your requirements are seen as OK if proprietary and hence shut off from sharing under the same terms, but not OK if copyleft and hence shut off from sharing under the same terms -- which seems to me a prime example of failing to grasp _either_ of the two basic facts about copyright law and software I mentioned to Ben Tilly: (1) People can and do perform pretty much whatever screwball actions they wish to perform with their own property. (2) You should take care to understand all of the implications of any licence you use, because somebody else definitely may, and you'll look really silly acting surprised. I sent another email to this extended branching thread discussing the issue of bookkeeping and the problems of perfect consensus as a requirement for allowing many (fairly typical, I think) public copyleft projects to contribute code back to upstream projects using different licenses, as contrasted with the relatively simple case of a business decision to contribute code from a proprietary project with a single copyright holder back to an upstream project. This, I think, very clearly bears on the disagreement to which you allude. While I think Nigel Tzeng may have done an imperfect job of describing this concern to you, I don't think I have failed to clarify that this seems to be part of his argument. Despite this, you have yet to acknowledge that such an imbalance in the potential for upstream contribution in the proprietary versus copyleft cases in this discussion when you make comments like the above. In short, ironically perhaps, it seems that the legal complexities involved favor more contribution to copyfree projects from downstream proprietary projects than from downstream copyleft projects, even ignoring the obvious disdain many copyleft partisans have for copyfree licensing (in some cases going so far as to call it evil and denigrate its proponents as tools, shills, enablers, or worse, for the behavior of economic predators, and other such cockamamie nonsense). In case you're tempted to take this amiss, I'm not saying you're one of these copyleft partisans. I'm just pointing out that even ignoring the behavior of people who wish to punish people who choose copyfree licensing policy for failing to see the Light and join the copyleft Cause (possibly rare, but noisy extremists), the simple fact of the legal complexities of a public open source project and the tangle of copyrights involved can ensure far greater counter-incentives for upstream contribution in copyleft projects than in proprietary projects. Permitting any derivatives satisfying 2-clause, 3-clause, or 4-clause obligations means permitting _any_ derivatives satisfying 2-clause, 3-clause, or 4-clause obligations. If licensor didn't intend that, then licensor shouldn't have chosen the licence. I think that people who complain in the case of copyleft appropriations generally do so not simply because of appropriations equivalent to those of proprietary projects, even taking the difference in likelihood of upstream contributions outlined above and elsewhere, but because such appropriations without upstream contribution tend to come in parallel with copyleft partisans (sometimes not the same people, but the perception of individual hypocrisy is difficult to shake, people being waht they are) scolding those who choose copyfree licenses for enabling corporate sociopaths (or whatever disparagement comes up) in their desires to conquer or destroy the world. Consider: 1. In Magical Fantasyland, where people are at least nice when taking advantage of each other, Plagiarism, Inc. forks a copyfree licensed project as a proprietary product and does not contribute improvements upstream. The Busybody Project forks the same copyfree licensed project as a copyleft project and does not contribute improvements upstream. Both of them say Thanks for giving us a leg up, guys! It's great we were able to make a good start this way. The copyfree project maintainers shake their heads ruefully and think Well, I'm glad people like it, and maybe this means that our open file formats and protocols will get wider use, thus increasing the utility of our software. 2. In the Republic of Realworld, Plagiarism, Inc. forks a copyfree license project as a proprietary product and does not contribute improvements upstream. The Busybody Project forks the same copyfree licensed project as a copyleft project and does not contribute improvements upstream. Plagiarism, Inc. keeps its yap shut and hopes
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 7:57 AM, Chad Perrin per...@apotheon.com wrote: These are generally exceptional cases that require either copyright assignment or carefully controlled maintenance of contribution records and continued contact with contributors. In cases where contributions to the downstream copyleft project are accepted from all comers (within reason) without a lot of bookkeeping -- as is the case with many open source projects -- the ability to contribute substantial code from the downstream copyleft project to the upstream copyfree project starts evaporating, not only because it may be difficult to get people to consent to their code being contributed to a copyfree licensed project when they intended it for a copyleft project, but also because the project maintainers may not have any easy way to identify and contact all the contributors with affected contributions in the first place. In many cases, it may even be difficult to track contributions themselves, regardless of the contributors. Meanwhile, in proprietary downstream projects, there is a single copyright holder, almost by definition. This entire problem of trying to figure out whether you have the legal right to contribute to upstream pretty much doesn't exist. I think this is an important point. When we look at a project like PostgreSQL for example, you have proprietary vendors like Green Plum and EnterpriseDB who contribute a *lot* of code back to the common project. This is pretty typical with BSD-licensed projects as a whole. Once you start having a GPL'd off-shoot then you have problems getting the same level of contribution back to the BSD-licensed original. This is an important concern and it's something a lot of people just kind of glide over but as someone who has worked with projects under both licenses I will say clearly that it's easier to get a proprietary project to make contributions back to a BSD-licensed project than it is to get a GPL'd project to do the same. True there are always cases where a vendor starts with a BSD codebase and runs their own direction with it without contirbuting back. In the PostgreSQL world, I guess the primary examples that come to mind are Informix and Vertica. However these are usually only successful when either the approach is so different that code sharing is not helpful or the project is sufficiently immature to make it helpful to just run one's own direction. In general though the cost to the developer is that they bear the fll cost of integrating new features from the BSD version, and almost always this creates a heavy incentive to contribute back. Best Wishes, Chris Travers Permissive licensing implies right to create derivatives under licences you don't like and reuse in ways you don't approve of, because that's somebody else's property (derivative of yours, but needing to satisfy only your minimal conditions), and some guy actually read your licence, correctly understood its permissive nature, and acted accordingly. Ben Tilly appeared to be addressing more than this simple legal status of copyfree licenses and other permissive licenses. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Ben Tilly (bti...@gmail.com): Seeing these repeated references to my name is getting annoying. This seems a little odd. All I said was that I'd recently made that observation to you -- which was factually correct and certainly not any offence to you or anyone else. You like to take people to task who have assumed that you take one position or another which you don't. Please stop assuming that you enlightened me Something I neither said nor implied. stop associating me with a position that I do not hold. Nor this. Many people who choose permissive licenses have a view that says that when you don't try to order people around with contracts, goodwill tends to get repaid down the road. I not only know this, but have written a number of essays pointing that out. [...] But in the eyes of the person who originally released the software, you have failed to be generous back to them, and you have created a barrier to future generosity from people down the road who use the improved version. (Proprietary software creates less of a barrier because there is a single entity that may come to see generosity as being in their enlightened self-interest.) Again I am not describing this to say that I hold this view, or that you should agree with it. Quite the contrary. I am merely offering it for anyone who wants to understand what may be going through the head of a person who gets upset about something like this. I'm quite familiar with the viewpoint (and permissive-license significant amounts of my own work for various reasons), but thank you. If a license does what I want 90% of the time quite well, and fails 10% of the time, is it better or worse than a license that does something you find merely OK 100% of the time? Mu. The premise is defective. If the licence doesn't grant the rights you wish granted, then it is defective 100% of the time. Failing to grant the rights you wish to grant might be evidenced by, e.g., 10% of the recipients behaving in ways you intended to disallow, but your chosen terms allowed this, and yet you are surprised. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 12:39 PM, Rick Moen r...@linuxmafia.com wrote: Anyway, as I just got through saying to Ben Tilly: (1) People can and do perform pretty much whatever screwball actions they wish to perform with their own property. (2) You should take care to understand all of the implications of any licence you use, because somebody else definitely may, and you'll look really silly acting surprised. Sure. But these are not always clear. For example, suppose I start selling a binary-only table engine for MySQL which offers real benefits over Innodb. Let's say less bloat, less maintenance, faster performance, and no issues with thread deadlocks when multi-row inserts are done. Suppose this is dynamically linked and I ship with an installer that detects installed MySQL versions and installs against this. The installer asks for a license key which is used to determine how many client access licenses you have purchased. I sell CAL's for $50/client. Suppose furthermore that I only ship this in to customers in the US so we can limit this discussion to US copyright law. Do I even need Oracle's permission to release my project? My money would be on no and so the GPL really would have no implication. After all, *all* have done is use an API owned by Oracle (my money would also be that they'd sue me to try to win anyway, see Google v. Oracle). Allowed? Not allowed? Only talking about what the *law* requires in this case. There may be other ways of pressuring certain behaviors other than court. But only talking about US law here. European law may be different. But I think that the current case law and statute strongly suggests that this would be allowed without any copyright license from Oracle at least in the US. I think that Oracle would lose as a matter of law and that you can't use copyright to restrict linking as a technical matter. Static linking would be arguably different *only* because one is distributing a compiled work containing a component of someone else's and therefore a copyright license would be required (providing a module which is statically linked only during install would not pose this problem though). But if Lexmark v. Static Control settled anything it's that you can't use copyright to control secondary markets for practical goods. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): Can you name a single case where a US court has said that if literal copying of code is required for interoperability of practical software or other practical tools (printer cartridges, garage door openers, etc), that this gives the copyright owner control over the markets for add-on products? Can you name a single reason why this utterly bizarre question has any connection whatsover to anything I've said? It doesn't. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/09/2012 01:53 AM, Rick Moen wrote: Read caselaw. I'm done. I'm glad Rick's done. There is a good chance that you, not Rick, are right. Recent case law is that APIs are bright lines between separate works and that connections across APIs do not create derivative works. And this is regardless of the way software is linked. Go read the recent finding in Oracle v. Google, it only reinforces that point. attachment: bruce.vcf smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Bruce Perens (br...@perens.com): I'm glad Rick's done. There is a good chance that you, not Rick, are right. Recent case law is that APIs are bright lines between separate works and that connections across APIs do not create derivative works. And this is regardless of the way software is linked. Go read the recent finding in Oracle v. Google, it only reinforces that point. I believe this is entirely consistent with what I said, Bruce. You even said 'Read caselaw.' ;- ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Fri, Jun 8, 2012 at 11:01 PM, Rick Moen r...@linuxmafia.com wrote: Quoting Chris Travers (ch...@metatrontech.com): Nowhere in these do I see any indication that mere inclusion of one work in another creates derivation. You will not find a simple acid test there or anywhere else. And yet, in my experience, if you read those cases, you will get the pattern of the way judges rule. It's a matter of whether copyrighted expressive elements were incorporated into a new work without permission. Not exclusively. I cited cases (Lexmark, Sony, etc) where expressive elements were included without permission but this was held to be de minimis (Lexmark) or fair use (Sony, Galoob), or allowed on other grounds. Those cases are interesting because it is undisputed that literal copying occurred. Hence my initial point of copyright only applying to the extent that the function and expressive elements are separable (in these cases, I would argue, they were not. You couldn't achieve the functions without copying the expressions, so it was allowed). These courts went about things in different ways but the pattern appears to be that copyright is not a legitimate tool for restricting interoperability of software. You are not going to find sharp lines about what constitutes creation of a new work, versus what is a collection. However, as I said, you will get the pattern and be able to predict fairly well how other cases are likely to turn out. Evidently we read the tea leaves differently. I suppose it is true that two observers will always connect the dots differently. I see the following patterns regarding proprietary software: 1) Where one party is copying another party's copyrighted works to their direct financial detriment the court is far more likely to side against the one doing the copying. 2) Where the copying party however, is doing so for interoperability purposes, or functional purposes of interoperability that do not create new audiovisual works, and do not directly implicate the other party's sales, these are far more likely to be allowed either via fair use (Sony v. Connectix) or de minimis exceptions (Lexmark). This, as in Lexmark, is a straightforward application of 17 USC 102(b) which states that copyright cannot be used to own an idea, method, practical process, etc. (The exact words are (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. ) From that I would suggest that the chance of a court holding that the necessity of linking to system libraries gives an OS vendor copyright control over all software running on that platform is very low, and the chance of that being upheld on appeal is effectively zero. Indeed I would argue that 17 USC 102(b) effectively prevents using copyright alone as a barrier to functional software interoperability. This seems to me a straight-forward application of Sony and Lexmark as well. Moreover I think this is what concerned the court in Oracle v. Google. So if you see the Gemini Engine as a piece of software interoperating with MySQL through a defined API, then static linking seems to my mind to be creating a compiled work, not a derivative one. If, however, we argue that the only functional unit that makes sense is the server binary as a while, then maybe it is derivative (however in that case, surely dynamic linking would cure that). I just don't think it is settled or clear cut. No. NuSphere's product was obviously derivative of MySQL because of the incorporation of copyrighted expressive elements into a new work without permission. The technological details are trivia. I don't think that works. If it did, every compiled work would be legally a derivative of all components, and I don't think you accept that either. If it was, then the work as a whole provision would mandate that Fedora Linux is violating RMS's copyrights by including OpenSSL on the same CD as the Readline library, which doesn't work. If it did the mere aggregation clause of the GPL v2 and equivalents in the GPL v3 would be meaningless. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Just one point in support of Rick's assertion here. My points as I stated I think clearly, are under the assumption that a court would look at the GPL v2 and try to map it directly to compiled/collected works (license allows without regard to license of other components) and derivative works (requires to be under the same license). Beyond the uncertainties I have suggested there's a second way I could see a court looking at it (again IANAL but I have listened to a lot of oral argument and read a lot of case law). I could see a court saying the near-unanimous view of the GPL v2 as expressed by the licensor here is that a work that links to this work is based on it for purposes of this license. Therefore it doesn't matter whether or not it meets the definition of derivative work or not. The licensee knew this was the intention of the license and therefore we intend to enforce it as such. So I think you have questions as to how the GPL v2 would/should be interpreted and, depending on that, questions of where the line is between a compiled and a derivative work. I don't think either of these are as clear as the you need a license if you link crowd would like to think though. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): Not exclusively. I cited cases (Lexmark, Sony, etc) where expressive elements were included without permission but this was held to be de minimis (Lexmark) or fair use (Sony, Galoob), or allowed on other grounds. Yes, affirmative defences and all that. Now, if you're entirely done with typical computerist extreme mania over edge cases and exceptions Hence my initial point of copyright only applying to the extent that the function and expressive elements are separable Look, we know all that. However, that's irrelevant to the alleged NuSphere 'case' that was hastily settled out of culpable embarrassment. If you cannot see the obvious literal reproduction of copyright-eligible expressive elements in the published work, I cannot help you. Either way, I see no point in pursuing the matter further. So if you see the Gemini Engine as a piece of software interoperating with MySQL through a defined API, then static linking seems to my mind to be creating a compiled work, not a derivative one. Dream on. I don't think that works. Read caselaw. I'm done. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Thu, Jun 07, 2012 at 03:09:47PM -0700, Luis Villa wrote: On Thu, Jun 7, 2012 at 3:04 PM, John Cowan co...@mercury.ccil.org wrote: Chad Perrin scripsit: Is have been approved through the [OSI's] license review process really a requirement for being an open source license, or is that just a requirement for being *certified* as an open source license by the OSI? Clearly the latter. The text should be adjusted accordingly, as there are several reasons why a license might be Open Source but not OSI-approved: 1) It has not been submitted for certification in proper form. 2) The Board considers it a vanity license. 3) The Board believes that it substantially duplicates an existing license. It seems that there is a distinction to be made between OSI-approved and merely open source, where open source would *by definition* (tautologically, it seems) be any license that conforms to the definition of open source. Exactly. I've got a partial draft response to Chad drafted, but John covers most of it - the general point is definitely well-taken. I'm about to leave on vacation, so am a bit crunched for time- if someone would propose an alternate wording, I'd appreciate it. I've been without email for about two and a half days, which accounts for the delay in my response. I just wanted to thank you both for your replies, clarifying the intent of the passage I quoted. I think the sentence in question can be best fixed by breaking it into two sentences, one each about what qualifies as an open source license and what the OSI review process does. While the following can surely stand some improvement, it may give a sense of what I mean as an example of how the edited form might be structured: Open Source licenses are licenses that comply with the Open Source Definition. The Open Source Initiative's review process is used to approve licenses for certification by the Open Source Initiative, as examples of licenses that conform to the Open Source Definition that should be regarded as well-established within the Open Source community. I hope that helps get the ball rolling on a revision. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chuck Swiger (ch...@codefab.com): What is a matter of concern is when someone removes a copyright statement and the BSD license terms from source code Obviously both abhorrent and illegal, irrespective of anything that follows. I'm thinking of the g4u vs g4l situation. You may or may not be aware that I was, at the time, probably _the_ most emphatic voice telling the g4l guy in public he was simply in the wrong. I'm guessing 'not'. (By the way, it'd be nice if people wouldn't keep assuming I were somehow new to these topics.) ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Bruce Perens (br...@perens.com): On 06/08/2012 08:55 AM, Tzeng, Nigel H. wrote: It amazes me that after all these years GPL proponents [...] Not a positive contribution. Factually mistaken premise, too. There are simple economic justifications for using a sharing-with-rules license or a gift-style license. One determines the desired result, and then one or the other is obviously appropriate. This of course includes various scenarios using a copyleft code instance as a means for building a proprietary software business (the easist examples involving dual-licensing, but there are others). ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): I don't think so. When we look at the case where this was raised as a controversy (a wireless driver in Linux taken from, iirc OpenBSD), the allegation was actually that no derivative work was created. The code was just included wholesale and the license changed. Intended reference is to ath5k, I think? The truly serious and unforgivable fsck-up was that Reyk Floeter's author credit and copyright licence notice were omitted. I was among the many who flogged whoever it was -- maybe Nick Kossifidis? -- for doing that. Not including Reyk Floeter's copyright notice was just flippin' rude among other things. But no, you are incorrect. When the Madwifi Project released their version as 'OpenHAL', it was substantially patched and also, as you might imagine, rearchitected to fit into the Madwifi driver framework. _After_ that epic screw-up was straightened out -- Floeter's author credit and copyright licence notice competently included -- he no longer had any reasonable complaint (let alone a cause of action). However, frankly, I wish he had gone for a copyright-infringement lawsuit over the initial misdeeds that had already occurred before that point, just to teach the Madwifi idiots to be more polite and competent. True, which is why I have sought out law review articles and case law. I would think that a case like MySQL v. Nusphere if it came up today would still be a case of first impression, would it not? I haven't yet found a case directly on point (the closest maybe being Gates Rubber). Maybe you have found a closer one. Micro Star v. FormGen, CAI v. Intel, Gates Rubber. (Don't be a painfully literal-minded computerist and insist you can learn the key concepts of derivative works only from software cases, please.) Copyright in US law protects expressive elements to the extent that they are separable from functional elements. You can't use copyright to protect pure function. [...] Quite. You know, I _have_ studied the subject. The main US case of this sort that doesn't involve video games (excluding video games because they are protected both as software and as audio-visual works so that is not a clear parallel) is Gates Rubber v. Bando (http://digital-law-online.info/cases/28PQ2D1503.htm) where the 10th Circuit applied an abstraction/filtration/comparison test to determine whether one piece of software was derived from another, concluded the district court got things wrong and sent it back to district court. The 'abstraction-filtration-comparison' three part test developed in CAI v. Intel and further elaborated in Gates Rubber is relevant to _non-literal_ copying of copyright-eligible elements. NuSphere's case is rather more brazen, and adjudication wouldn't require that conceptual test at all. It would not even be relevant: NuSphere (obviously) did literal copying of the entirety of the MySQL engine into the body of its product, expressive elements and all. You deny that that creates a derivative work of MySQL? Good luck with that. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Ben Tilly (bti...@gmail.com): [...] However if someone downstream re-releases under a copyleft license, there is essentially no chance of changes downstream of that ever being re-released under a permissive license that can be reintegrated back into the original project. To be deliberately flip, the big difference is: A derivative instance released under a copyleft licence cannot be reintegrated into the original permissive-licensed product. versus: A derivative instance released under a proprietary licence cannot be reintegrated into the original permissive-licensed product. (Because it's -- hey! -- proprietary. But wait, you say, you're missing the point! There's a non-zero positive chance the derivative under a proprietary licence will eventually be contributed back under the permissive one. Could happen. Whereas, derivatives initially released under a copyleft licence are basically never made available under a permissive one. (Except, oh, many driver codebases of which that's the case, including aic7xxx SCSI if memory serves.) Anyway, in dealing with copyright law and software, it's well to reconcile one's self early on to a pair of background facts: (1) People can and do perform pretty much whatever screwball actions they wish to perform with their own property. (2) You should take care to understand all of the implications of any licence you use, because somebody else definitely may, and you'll look really silly acting surprised. Permissive licensing implies right to create derivatives under licences you don't like and reuse in ways you don't approve of, because that's somebody else's property (derivative of yours, but needing to satisfy only your minimal conditions), and some guy actually read your licence, correctly understood its permissive nature, and acted accordingly. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Fri, Jun 8, 2012 at 7:46 PM, Rick Moen r...@linuxmafia.com wrote: True, which is why I have sought out law review articles and case law. I would think that a case like MySQL v. Nusphere if it came up today would still be a case of first impression, would it not? I haven't yet found a case directly on point (the closest maybe being Gates Rubber). Maybe you have found a closer one. Micro Star v. FormGen, CAI v. Intel, Gates Rubber. (Don't be a painfully literal-minded computerist and insist you can learn the key concepts of derivative works only from software cases, please.) I just think computer games are problematic here. The reason is that computer games are far more heavily protected than utilitarian software. This leads to issues in computer games that don't occur in utilitarian software. My reason for excluding them is that I think they appear deceptively similar. For example Micro Star v. FormGen makes more sense when looked at as a multimedia case than as a software case. CAI v. Altia (is that the case you meant?) is mostly like Gates Rubber in this regard. Nowhere in these do I see any indication that mere inclusion of one work in another creates derivation. Indeed if it did, it would be hard to imagine any case where a collected work or a compiled work was not derivative of its members. Copyright in US law protects expressive elements to the extent that they are separable from functional elements. You can't use copyright to protect pure function. [...] Quite. You know, I _have_ studied the subject. As have I which may be why the discussion is at least somewhat interesting. But I find it helps to start at the beginning. The main US case of this sort that doesn't involve video games (excluding video games because they are protected both as software and as audio-visual works so that is not a clear parallel) is Gates Rubber v. Bando (http://digital-law-online.info/cases/28PQ2D1503.htm) where the 10th Circuit applied an abstraction/filtration/comparison test to determine whether one piece of software was derived from another, concluded the district court got things wrong and sent it back to district court. The 'abstraction-filtration-comparison' three part test developed in CAI v. Intel and further elaborated in Gates Rubber is relevant to _non-literal_ copying of copyright-eligible elements. NuSphere's case is rather more brazen, and adjudication wouldn't require that conceptual test at all. It would not even be relevant: But literal copying isn't what makes a derivative work a derivative work. The AFC test gets you to the question of what's protected and whether the overall work falls under copyright law generally. It doesn't tell you entirely what category of protected work it then falls under. I assume we agree that Ubuntu Linux is not a derivative work of bash, or X.org, or any of the other pieces that they include. It's properly a compiled work including these, not derivative of these pieces. If we agree there, then we have to agree that the ISO of Ubuntu is also not a derivative work of these pieces either. Copyright permission is required under US law to distribute the pieces, but only essentially anthology rights, not the right to produce derivative works. Assuming we agree here so far, great. We now know that it is possible for one work to include another without being derivative of that work and the question is limited to whether that is different just because we are talking about a single binary. In the cases like Micro Star, the issue is that by installing these new levels, you get a new audio-visual work and it transforms the original expressive multi-media into something new. Note this would be the case regardless of the technical details of implementation. I would go further however and suggest that the key factors here, as they would be in any other multi-media case. But this isn't a case where you have functionality considerations. It's merely a case of protecting artistic expression. If you are looking to literal copying, I would suggest that even there, the functional/artistic boundary gets a lot more attention than is clear. For example in cases where literal copying is required to achieve interoperability, every case I can find allowed the copying to go forward. See Sony v. Connectix, Lexmark v. Static Control, Oracle v. Google (the judge noted that the API definition lines had to be reproduced exactly, so that's copying of literal elements). In general I would suggest that where it comes to interoperability generally, courts seem to be unwilling to enforce copyright. So in this view, if Nusphere distributed the Gemini engine compiled against MySQL's own header files, and with instructions for the end user to link it, this might be permitted even in the absence of copyright license. It doesn't raise the artistic issues present in Midway or Micro Star. Distributing the library statically linked into the
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting John Cowan (co...@mercury.ccil.org):
Is there actually such a thing as copyright sublicensing? I suspect not.
In which case purporting to sublicense an unchanged copy of a work
is usurping the copyright owner's right to control the license, and
likewise for a copy whose changes are de minimis. You can license your
derivative work however you like, consistently with the original license,
but that's not a sublicense: it is the license of the new work.
My surmise is that the thing being referred to as '{sublicensing|relicensing}
of BSD works' is in fact stating the licensing for a derivative.
A certain number of the BSD regulars remain deeply unhappy when those
works state copyleft requirements, even though they're perfectly happy
when derivatives of the same BSD works have proprietary licenses. Go
figure.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Thu, Jun 7, 2012 at 8:18 PM, John Cowan co...@mercury.ccil.org wrote:
Rick Moen scripsit:
I keep hearing a limited group of people speaking of this alleged tort
('purporting to sublicense'), but fail to find it in copyright law.
Is there actually such a thing as copyright sublicensing? I suspect not.
In which case purporting to sublicense an unchanged copy of a work
is usurping the copyright owner's right to control the license, and
likewise for a copy whose changes are de minimis. You can license your
derivative work however you like, consistently with the original license,
but that's not a sublicense: it is the license of the new work.
Maybe I misunderstood what Larry Rosen was saying about the
differences in the BSD and MIT licenses in his book then ;-). I
thought his discussion was pretty clear though. Also see Gardner v.
Nike, 9th Circuit 2002 (IANAL btw as I will repeatedly state below).
I am not 100% sure but I think after the changes in 2010, exclusive
licensees are now assumed to have sublicense rights as well. For
non-exclusive licensees (all open source licenses), that's a different
issue. Maybe a lawyer could correct me if I am wrong about the 2010
changes.
The thing that makes these issues hard is that protecting software
with copyright is a bit like pounding nails with an adjustable wrench.
The tool isn't really designed for that (copyright, at least in the
US, is designed to protect literature, not recipes in cookbooks) and
so it seems to me there are all sorts of gotchas.
If I give a book publisher the right to sublicense my book, I would
assume at a minimum they could tell a magazine they could serialize
it, for example, and on what terms. Presumably they could license an
excerpt to be published in an anthology and set terms (within certain
limits dependent on the contract with the publisher) for that
publication. Maybe they could even negotiate movie rights. My
understanding is that US law assumes that sublicensing is not allowed
unless specifically stated even in the case of an exclusive copyright
license. IANAL though.
The Nusphere case is more interesting when we stop thinking about
software and look at copyright as protecting what might be thought of
as software as literature or software as expression. The GPL
allows mere aggregation without license contagion but requires that
works based on the original work carry the same license. If we
assume that these tie directly to categories of US copyright works,
then based on means derivative work (in the sense that a movie might
be based on a book), while aggregation would appear to mean compiled
or collected works (anthologies). A program linking to another
program is not based on that other program in that sense regardless
of the mechanism of linking any more than an anthology is based on the
pieces published therein. Whether the Geminii table engine would be a
derivative work of MySQL is a question that I don't think the
jurisprudence is clear on (IANAL again). In the most simplistic of
approaches, Nusphere would be safe. (It gets complicated because I
don't think API's and can be effectively copyrighted, and header files
are too heavily tied to APIs to get much protection in that way--- see
endless discusson on Groklaw during the SCO case on this issue, but at
the same time, if you can show continuity of expression that goes
beyond functional requirements, then you might have a case.)
But the point here is that both of these are cases where reasonable
minds can disagree. Rick looks at the BSD license and says well, it
seems to allow me to license this to others under more restrictive
terms if I keep the old copyright notices and license text in tact.
Someone else might say sublicensing is not mentioned. Therefore it's
not allowed. Again with MySQL v. Nusphere, there are questions where
reasonable people can disagree about the intersection of copyright law
and software regardless of how severe Nusphere's violations of social
norms are. These are the cases I see getting litigated. I just don't
see how any statistics there tell us anything useful about the
licenses.
Best Wishes,
Chris Travers
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Jun 7, 2012, at 8:33 PM, Rick Moen wrote:
My surmise is that the thing being referred to as '{sublicensing|relicensing}
of BSD works' is in fact stating the licensing for a derivative.
Probably. My own opinion is that folks who do anything less than a substantial
rewrite of software ought to release their changes under the same license as
the original source.
However, permissive licenses were explicitly designed to permit closed-source
reuse; that's considered a feature by the authors who chose such licenses.
A certain number of the BSD regulars remain deeply unhappy when those
works state copyleft requirements, even though they're perfectly happy
when derivatives of the same BSD works have proprietary licenses. Go
figure.
I don't know anyone with a commit bit to a BSD-derived OS who is
perfectly happy when a proprietary system derives from BSD code, but
it's not considered unusual or a matter of concern.
What is a matter of concern is when someone removes a copyright statement
and the BSD license terms from source code, and replaces that with the GPL.
Of course, it would be exactly the same matter of concern if someone replaced
the copyright and BSD license terms with the MPL, CDDL, APSL, or any other
license.
I'm thinking of the g4u vs g4l situation. Although it no longer seems useful
for me to interact with NetBSD, I do agree with Andy Ruhl's take:
http://mail-index.netbsd.org/netbsd-advocacy/2004/09/17/0003.html
Regards,
--
-Chuck
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
I don't think that the inclusion of MPL 2.0 in any way a bad decision. My assumption is that the Steward of the MPL requested that all significant references to the the MPL be modified to point to the new version. Similarly, the original list included both the CPL and the EPL. When the CPL was deprecated in favour of the EPL, the CPL was deleted from the list. This is just minimalistic, pragmatic, and common sensical list maintenance. [I'll add something now about MPL 2.0: It was submitted for approval in early December of last year and approved within a few months, as it should have been; it is a good license. Yet it appears already on the list of OSI-approved licenses as popular, widely used, or have strong communities. Is it because there are defenders of the MPL 2.0 on the OSI board? Is that honest, fair, unbiased and legitimate?] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Luis Villa writes: The following Open Source licenses are popular, widely used, or have strong communities: As long as that list remains, I will object. It is inaccurate, incomplete, misleading, subject to cronyism and personal bias by members of the OSI board of directors, and does not reflect the actual importance or uses of those licenses. Get rid of any indication that popularity [1] has anything to do with legal viability. Define what you mean by widely used [2]. What is a strong community [3]? /Larry [1] I've already pointed out that the Black Duck statistics on popularity are in error! [2] Do you mean lines of code? Number of software packages? And where's the data to back up that list? [3] Since when is the community for Open Solaris (CDDL) stronger than the community for Magento or the US government software distributed under OSL 3.0, or the non-Apache software contributed to lots of projects under AFL 3.0, or the IETF software distributed under NOSL 3.0 (a license, by the way, that has no equivalent)? Yes, I'm as biased as the members of the OSI board when it comes to licenses, and I intend to be as loud a voice as you are as long as you continue to propagate that nonsensical list. /Larry Lawrence Rosen Rosenlaw Einschlag, a technology law firm (www.rosenlaw.com) 3001 King Ranch Rd., Ukiah, CA 95482 Office: 707-485-1242 -Original Message- From: Luis Villa [mailto:l...@tieguy.org] Sent: Monday, June 04, 2012 9:17 AM To: License Discuss Subject: Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages On Sat, Jun 2, 2012 at 12:35 PM, Luis Villa l...@tieguy.org wrote: The following Open Source licenses are popular, widely used, or have strong communities: Apache License, 2.0 (Apache-2.0) BSD 3-Clause New or Revised license (BSD-3-Clause) BSD 3-Clause Simplified or FreeBSD license (BSD-2-Clause) GNU General Public License (GPL) GNU Library or Lesser General Public License (LGPL) MIT license (MIT) Mozilla Public License 2.0 (MPL-2.0) Common Development and Distribution License (CDDL-1.0) Eclipse Public License (EPL-1.0) Because there appears to have been some confusion, judging from private emails, let me be explicit that this is exactly the same list currently described as License [sic] that are popular and widely used or with strong communities. No changes, editorial or otherwise, have been made except to change the category name into a complete sentence. Do NOT suggest changes to this list at this time. It is not perfect, but it is long-settled, and will not be revised until many months (more likely years) of work have been done. Luis ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
