Re: [License-discuss] BSD 3-clause and copyright notices

[Kevin Fleming]

On Fri, Oct 2, 2015 at 12:32 PM, Zluty Sysel  wrote:

> Thanks for the suggestion.
> All options will be considered but our original hope was to be able to
> require attribution to everybody with some exceptions (i.e. certain
> customers).
>


This is not a 'waiver', it's a second license. Your statements indicate
that you want to be able to distribute the software under two licenses:
BSD, and a BSD-like license that does not require attribution (which might
be the 'zlib' license).

To achieve this, you'll need to obtain that level of licensing flexibility
from your contributors. As has been noted by others here, there are
multiple options available:

* Copyright assignment: heavy weight, difficult for corporate copyright
holders, seen as a significant barrier to contribution

* Contributor license agreement providing broad licensing privileges:
somewhat common, but seen as a barrier to contribution because the
contributors are granting you the ability to license their contributions
under any license you wish

* Contributor license agreement providing specific licensing privileges:
more likely to be perceived as 'fair', if the contributors only grant
permission to distribute their contributions under the two specific
licenses mentioned

In the end, though, it's probably much easier to just use the zlib license.
There may be some people who will choose not to contribute due to the lack
of attribution obligations, but those same people would likely not
contribute if a copyright assignment or contributor license were required.
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Re: [License-discuss] BSD 3-clause and copyright notices

[John Cowan]

Zluty Sysel scripsit:

> Well, since the code is distributed under a license that requires
> disclosure there was some fear internally that disclosure and license
> reproduction would be mandatory for all users of the source code.

It is a mistake to suppose that the BSD and similar licenses require
disclosure of the source code.  Rather, they presuppose it.  If you
are in possession of the source code, you get certain rights; if you
aren't in possession, you get no rights.

There is code in Windows that was licensed under the BSD license�, but
that fact does not mean that anyone outside Microsoft has the right
to receive that source code from Microsoft.

-- 
John Cowan  http://www.ccil.org/~cowanco...@ccil.org
Don't be so humble.  You're not that great.
--Golda Meir
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Re: [License-discuss] BSD 3-clause and copyright notices

[Rick Moen]

Quoting Zluty Sysel (zluty.sy...@gmail.com):

> What if we accepted contributions from individuals but only
> "acknowledged" their work in a special "THANKS" or "ACKNOWLEDGEMENT"
> file without modifying at all the "(c) TheCompany" in the license
> itself and therefore not granting any ownership rights to the
> contributors?

One important point:  Such a notice does not _grant_ ownership rights.

Those rights arise and legally vest with the contributor automatically,
silently, and invisibly at the moment he/she puts his/her work in fixed
form.  Failing to mention that ownership interest in a copyright notice, 
or a THANKS or ACKNOWLEDGEMENTS file, or elsewhere cannot make the
contributor's ownership right go away.  It simply cannot.[1]

All you accomplish by omitting mention of such ownership claims is to 
deliberately fail to advise downstream recipients of who the full set of
owners are.

If you want to eradicate the problem of contributors enjoying a
copyright encumbrance over the codebase, get copyright assignments.  In
USA legal jurisdictions, this must be evidenced in writing, signed.
Other juridications, check locally.

[1] Naturally, contributors and other copyright stakesholders _can_ waive
the requirement of notice.  I strongly second the suggestion of
implementing this idea in a waiver accompanying a standard licence,
rather than modifying an existing licence.

-- 
Cheers,  Arrq uryc qrpelcgvat EBG13?  Nfx zr ubj!
Rick Moen  
r...@linuxmafia.com
McQ! (4x80)
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Re: [License-discuss] BSD 3-clause and copyright notices

[Rick Moen]

Quoting Stephen Paul Weber (singpol...@singpolyma.net):

> If you want to be open source and do not want to require
> attribution, why not consider  or similar?

Like most recent licences that aim to be more minimal than MIT/X11
License and Fair License (both OSI Certified, BTW), Unlicense suffers
fatal drafting errors, such that it should _not_ be recommended to
anyone.

https://lists.opensource.org/pipermail/license-review/2012-January/26.html
https://lists.opensource.org/pipermail/license-review/2012-January/47.html
https://lists.opensource.org/pipermail/license-review/2012-January/49.html
https://lists.opensource.org/pipermail/license-review/2012-January/52.html
https://lists.opensource.org/pipermail/license-review/2012-January/60.html

OTOH, Creative Commons CC0 is highly permissive and legally airtight
because it includes well-drafted permissive licence that applies in any
jurisdiction where its primary PD dedication clauses fail to have the
intended legal effect.  (On the gripping hand, this causes its full text
to be lengthy.)

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Re: [License-discuss] BSD 3-clause and copyright notices

[Zluty Sysel]

On Fri, Oct 2, 2015 at 3:49 PM, Stephen Paul Weber
 wrote:
>> Can we allow these
>> customers not to reproduce the BSD license text even if our AUTHORS
>> file contains names and email addresses of people outside of our
>> company? Because that's really all we're after here, allowing certain
>> customers not to have to mention that they are using our libraries.
>
>
> If you want to be open source and do not want to require attribution, why
> not consider  or similar?

Thanks for the suggestion.
All options will be considered but our original hope was to be able to
require attribution to everybody with some exceptions (i.e. certain
customers).

Zluty
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Re: [License-discuss] BSD 3-clause and copyright notices

[Stephen Paul Weber]

Can we allow these
customers not to reproduce the BSD license text even if our AUTHORS
file contains names and email addresses of people outside of our
company? Because that's really all we're after here, allowing certain
customers not to have to mention that they are using our libraries.


If you want to be open source and do not want to require attribution, why 
not consider  or similar?


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Re: [License-discuss] BSD 3-clause and copyright notices

[Gervase Markham]

On 02/10/15 15:36, Zluty Sysel wrote:
> So just to be sure, if the contributors waiver their ownership rights,
> then the 3-clause BSD stands and if users do not acknowledge usage of
> the software in their binary distributions it is up to the company to
> choose whether to enforce or not that obligation, leaving us the
> option of not enforcing it with certain customers.

You can't waive ownership rights; you have to assign or license them.
But yes.

> Do we really need additional paperwork? wouldn't it be enough to have
> a license agreement that each contributor has to accept
> (electronically, just by pressing "Accept" or something to that
> effect).
> In our particular case, and given the nature of our software, we
> believe a waiver to the to the attribution clause in binary
> distributions would be more than acceptable for our potential
> contributors, so this could be the solution we're after.

If I were you, I'd save the trouble and use the zlib license instead.

Gerv
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Re: [License-discuss] BSD 3-clause and copyright notices

[Zluty Sysel]

On Fri, Oct 2, 2015 at 3:45 PM, Gervase Markham  wrote:
> On 02/10/15 14:26, Zluty Sysel wrote:
>> What if we accepted contributions from individuals but only
>> "acknowledged" their work in a special "THANKS" or "ACKNOWLEDGEMENT"
>> file without modifying at all the "(c) TheCompany" in the license
>> itself and therefore not granting any ownership rights to the
>> contributors?
>
> Copyright doesn't work like that. The copyright automatically belongs to
> the author, and you need a license or transfer or other legal agreement
> to change that situation. You can't take their copyright simply by
> virtual of not crediting them or by not labelling the software with
> their copyright.
>
>> If I'm not mistaken the zlib license would fit our requirements since
>> it does not require attribution, it only encourages it. I might be
>> wrong though.
>> Would the zlib license not be usable in the EU?
>
> zlib is widely used in the EU. So yes, this license would also be suitable.

Good to know, thanks for the information.

>> If we did that we wouldn't need the waiver anymore I believe, from a
>> previous response in this thread. Because then we'd be the sole
>> copyright owners and therefore the only ones authorized to enforce our
>> copyright, we could simply choose not to do so.
>
> Yes.

So just to be sure, if the contributors waiver their ownership rights,
then the 3-clause BSD stands and if users do not acknowledge usage of
the software in their binary distributions it is up to the company to
choose whether to enforce or not that obligation, leaving us the
option of not enforcing it with certain customers.

>>> * Require contributors to give a limited waiver solely for the
>>> attribution clause.
>>
>> Maybe i have misunderstood the previous option. What would be the
>> difference between this option and the previous one?
>
> Merely the more limited scope of the waiver.

I see, a bit of confusion arose here with the word "waiver" because
there are 2 potential ones: the one that contributors would have to
agree to to contribute, and the one that exempts certain users from
revealing the fact that they are using our libraries. You were I think
referring to the former.

>> Is it that in the
>> last one the contributor still owns the rights to his/her code but
>> waivers the right to be present in notices for binary distributions?
>> And the previous one makes him or her give the ownership rights
>> completely?
>
> Yes.
>
>> In any case would the last 2 options be compatible with BSD and open
>> source in general? Because that could work for us.
>
> They would be legally compatible; however, requiring copyright
> assignment will reduce the pool of people willing to contribute to your
> project, either because they object to giving you the exclusive right to
> make money by proprietarizing their hard work, or because of the
> additional hassle of doing the paperwork.

Do we really need additional paperwork? wouldn't it be enough to have
a license agreement that each contributor has to accept
(electronically, just by pressing "Accept" or something to that
effect).
In our particular case, and given the nature of our software, we
believe a waiver to the to the attribution clause in binary
distributions would be more than acceptable for our potential
contributors, so this could be the solution we're after.

Thanks again.

Zluty
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Re: [License-discuss] BSD 3-clause and copyright notices

[Gervase Markham]

On 02/10/15 14:26, Zluty Sysel wrote:
> What if we accepted contributions from individuals but only
> "acknowledged" their work in a special "THANKS" or "ACKNOWLEDGEMENT"
> file without modifying at all the "(c) TheCompany" in the license
> itself and therefore not granting any ownership rights to the
> contributors?

Copyright doesn't work like that. The copyright automatically belongs to
the author, and you need a license or transfer or other legal agreement
to change that situation. You can't take their copyright simply by
virtual of not crediting them or by not labelling the software with
their copyright.

> If I'm not mistaken the zlib license would fit our requirements since
> it does not require attribution, it only encourages it. I might be
> wrong though.
> Would the zlib license not be usable in the EU?

zlib is widely used in the EU. So yes, this license would also be suitable.

> If we did that we wouldn't need the waiver anymore I believe, from a
> previous response in this thread. Because then we'd be the sole
> copyright owners and therefore the only ones authorized to enforce our
> copyright, we could simply choose not to do so.

Yes.

>> * Require contributors to give a limited waiver solely for the
>> attribution clause.
> 
> Maybe i have misunderstood the previous option. What would be the
> difference between this option and the previous one? 

Merely the more limited scope of the waiver.

> Is it that in the
> last one the contributor still owns the rights to his/her code but
> waivers the right to be present in notices for binary distributions?
> And the previous one makes him or her give the ownership rights
> completely?

Yes.

> In any case would the last 2 options be compatible with BSD and open
> source in general? Because that could work for us.

They would be legally compatible; however, requiring copyright
assignment will reduce the pool of people willing to contribute to your
project, either because they object to giving you the exclusive right to
make money by proprietarizing their hard work, or because of the
additional hassle of doing the paperwork.

Gerv
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Re: [License-discuss] BSD 3-clause and copyright notices

[Zluty Sysel]

Thanks for the reply.

On Fri, Oct 2, 2015 at 11:22 AM, Gervase Markham  wrote:
> On 01/10/15 14:27, Zluty Sysel wrote:
>> distributed) product. Given this, let me rephrase: Can we allow these
>> customers not to reproduce the BSD license text even if our AUTHORS
>> file contains names and email addresses of people outside of our
>> company? Because that's really all we're after here, allowing certain
>> customers not to have to mention that they are using our libraries.
>
> No. If you accept code into your codebase under the BSD licence, then
> users of that code have to comply with the license, because you are no
> longer able to offer a waiver for the code to which you do not own the
> copyright. You have three possible options:

What if we accepted contributions from individuals but only
"acknowledged" their work in a special "THANKS" or "ACKNOWLEDGEMENT"
file without modifying at all the "(c) TheCompany" in the license
itself and therefore not granting any ownership rights to the
contributors? Assuming contributors weren't discouraged by that, would
that be compatible with the BSD license?

We might be trying to remove the open source essence from the license
here, but since I'm not an expert and I really want this to become a
reality, I am ready to grasp at straws to push it forward.

> * Pick a project license which does not require attribution (that
> basically means a Public Domain dedication); or

If I'm not mistaken the zlib license would fit our requirements since
it does not require attribution, it only encourages it. I might be
wrong though.
Would the zlib license not be usable in the EU?

> * Require copyright assignment or a very broad copyright license to all
> contributions, so that you can continue to offer the waiver; or

If we did that we wouldn't need the waiver anymore I believe, from a
previous response in this thread. Because then we'd be the sole
copyright owners and therefore the only ones authorized to enforce our
copyright, we could simply choose not to do so.

> * Require contributors to give a limited waiver solely for the
> attribution clause.

Maybe i have misunderstood the previous option. What would be the
difference between this option and the previous one? Is it that in the
last one the contributor still owns the rights to his/her code but
waivers the right to be present in notices for binary distributions?
And the previous one makes him or her give the ownership rights
completely?

In any case would the last 2 options be compatible with BSD and open
source in general? Because that could work for us.

Thanks!

Zluty
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Re: [License-discuss] BSD 3-clause and copyright notices

[Simon Phipps]

On Thu, Oct 1, 2015 at 2:27 PM, Zluty Sysel  wrote:

> The problem comes with acknowledging the usage of this codebase in
> binary distributions. Some of the future users of this source code are
> also our current customers, and some of these customers do not want to
> reveal that they are using our particular libraries for their (binary
> distributed) product. Given this, let me rephrase: Can we allow these
> customers not to reproduce the BSD license text even if our AUTHORS
> file contains names and email addresses of people outside of our
> company? Because that's really all we're after here, allowing certain
> customers not to have to mention that they are using our libraries.
>

I would not recommend changing the license itself as that would require OSI
approval as a new license, but if that is the only issue, and reproducing
the copyright notices of later contributors who do not also make a waiver
is not really the obstacle, perhaps you could add an additional notice
along the lines of
"As a special additional right, <$company> grants all licensees of its
copyright under the above license the right to distribute binary versions
without reproducing their copyright notices per clause 2. We also encourage
(but do not require) later contributors to make the same waiver."

IANAL, TINLA etc.

S.
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Re: [License-discuss] BSD 3-clause and copyright notices

[Gervase Markham]

On 02/10/15 11:05, David Woolley wrote:
> Public domain dedication is impossible in Europe.  There is some doubt
> as whether it is even possible in the USA.  The nearest you would get is
> something like CC0, which attempts to disclaim as much IPR as it is
> possible to disclaim.

That is indeed what I meant.

Gerv
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Re: [License-discuss] BSD 3-clause and copyright notices

[David Woolley]

On 02/10/15 10:22, Gervase Markham wrote:

* Pick a project license which does not require attribution (that
basically means a Public Domain dedication); or



Public domain dedication is impossible in Europe.  There is some doubt 
as whether it is even possible in the USA.  The nearest you would get is 
something like CC0, which attempts to disclaim as much IPR as it is 
possible to disclaim.

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Re: [License-discuss] BSD 3-clause and copyright notices

[Gervase Markham]

On 01/10/15 14:27, Zluty Sysel wrote:
> distributed) product. Given this, let me rephrase: Can we allow these
> customers not to reproduce the BSD license text even if our AUTHORS
> file contains names and email addresses of people outside of our
> company? Because that's really all we're after here, allowing certain
> customers not to have to mention that they are using our libraries.

No. If you accept code into your codebase under the BSD licence, then
users of that code have to comply with the license, because you are no
longer able to offer a waiver for the code to which you do not own the
copyright. You have three possible options:

* Pick a project license which does not require attribution (that
basically means a Public Domain dedication); or

* Require copyright assignment or a very broad copyright license to all
contributions, so that you can continue to offer the waiver; or

* Require contributors to give a limited waiver solely for the
attribution clause.

Gerv
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Re: [License-discuss] BSD 3-clause and copyright notices

[Zluty Sysel]

Hi there,

Thanks for the reply.

On Wed, Sep 30, 2015 at 10:33 PM, Henrik Ingo  wrote:
> On Tue, Sep 29, 2015 at 5:13 PM, Zluty Sysel  wrote:
>> Hi all,
>>
>> After conquering many hurdles along the way, it looks like the company
>> I am a part of is willing to release a good part of the source code we
>> own as open source software. Before we do that though there are a
>> couple of outstanding issues that I was hoping someone on this mailing
>> list could clarify. We want to use a BSD 3-clause and immediately
>> publish the source code on a public code repository allowing
>> contributions from users. The questions that have arisen are the
>> following:
>>
>> 1) Clause 2 requires users that distribute the software in binary form
>> to reproduce the copyright notice. Since the holder of the copyright
>> notice is the very same company that makes the source code available
>> to them, would it be possible to selectively waiver this obligation to
>> a particular set of users without infringing on the Open Source
>> definition or the BSD license itself?
>
> Yes and no.
>
> Since your employer owns the copyright to this software, they of
> course have the right to issue any licenses to it that they want. One
> such license could bd BSD+waiver, to a specific list of recipients. If
> these recipients are your customers, you would probably send them a
> letter with such text. Alternatively you could publish the waiver on
> your website, etc. Doing this would not be unheard of.
>
> However, since you intend to receive outside contributions, this
> becomes trickier. You cannot issue a waiver on behalf of the other
> developers who will own copyrights to the code they have contributed.

And that's exactly the company's fear. As another reply in this thread
mentioned, waivers are complicated and we'd be thrilled not to have to
issue any or even think about them. But the reality is that, although
we do want the project to become open source we need to care about
customers who might not want to mention that they use "our" open
source software.

>
>> If the answer was negative, would including the existence of such a
>> waiver in the license itself preclude it from being considered an open
>> source software license?
>
> Well, it would no longer be the BSD license and hence it would not be
> an OSI approved open source license.
>
> A license with such a waiver may still be open source in the sence
> that it would conform to the Open Source Definition. However, if you
> wanted general approval for it, you would have to submit it to OSI
> review as a new license. I think it's a fair estimate that you might
> not succeed in having such a modified license approved though.

I  feared so. And that's why ideally we'd use an already approved OSI
license, but one that doesn't force binary distributions to reproduce
the license. Perhaps a zlib license would be better for us?

>> 2) When accepting contributions to the source code repository from
>> external sources, I have seen that is sometimes customary to include
>> an additional copyright line to the license text included at the top
>> of the source file, crediting the person or company that contributed
>> the new code or file.
>> Would then the waiver mentioned in question 1) be in violation of the
>> additional copyright holder(s)' rights?
>
> Yes, as I explained above.
>
> There are some practices in the open source community that could still
> help you get around this. For example sometimes a central copyright
> holder may require other contributors to assign their rights to the
> central entity. (This can be either a for-profit or non-profit
> corporation.) In this case the problem goes away, since your employer
> would continue to own rights to 100% of the code. Note however that
> such contributor agreements / IPR assignments are somewhat unpopular
> in the community. The main reasons behind that are that a) they add
> bureacratic overhead to the act of contributing, and b) they add
> inequality to the contributor community, for example the central
> entity may use its right to include the contributed code in closed
> source products. In your case, since the code is BSD licensed anyway,
> the b) concern may not be so important.

From what I gather it should be then possible to keep the copyright
entirely the company's but then "acknowledge" the rest of contributors
in a file or on the website. Perhaps that would actually be a
possibility for us given that we expect most contributors to submit
changes for their own benefit and not for ours.

> You could also simply say that contributors must accept the waiver,
> otherwise

Re: [License-discuss] BSD 3-clause and copyright notices

[Zluty Sysel]

Hi there,

Thanks for the reply.

On Wed, Sep 30, 2015 at 11:12 AM, Philippe Ombredanne
 wrote:
> On Tue, Sep 29, 2015 at 6:13 PM, Zluty Sysel  wrote:
>> Hi all,
>>
>> After conquering many hurdles along the way, it looks like the company
>> I am a part of is willing to release a good part of the source code we
>> own as open source software. Before we do that though there are a
>> couple of outstanding issues that I was hoping someone on this mailing
>> list could clarify. We want to use a BSD 3-clause and immediately
>> publish the source code on a public code repository allowing
>> contributions from users. The questions that have arisen are the
>> following:
>>
>> 1) Clause 2 requires users that distribute the software in binary form
>> to reproduce the copyright notice. Since the holder of the copyright
>> notice is the very same company that makes the source code available
>> to them, would it be possible to selectively waiver this obligation to
>> a particular set of users without infringing on the Open Source
>> definition or the BSD license itself?
>> If the answer was negative, would including the existence of such a
>> waiver in the license itself preclude it from being considered an open
>> source software license?
>
> As the copyright holder you can do as you please.
> You do not need to attribute yourself for your own code, though that
> is of course nice anyway ;)
> No need for a waiver.
> A waiver would be rather an awkward and weird thing.

Well, since the code is distributed under a license that requires
disclosure there was some fear internally that disclosure and license
reproduction would be mandatory for all users of the source code.

>
>> 2) When accepting contributions to the source code repository from
>> external sources, I have seen that is sometimes customary to include
>> an additional copyright line to the license text included at the top
>> of the source file, crediting the person or company that contributed
>> the new code or file.
>
> Either that or an author file. Simpler is better.

That's good to know. An author file would make our lives easier and we
have no problem adding one, the problems come later with the inclusion
of the BSD notice for binary distributions as I'll explain below.

>
>> Would then the waiver mentioned in question 1) be in violation of the
>> additional copyright holder(s)' rights?
>
> May be not in violation of their rights but in contradiction with your
> eventual obligations.
>
> Think about it this way:
> What if you were such an external contributor: you worked hard to
> provide code enhancements to this project.
> And as a thank you note, you have . nothing. This would not be
> great, would it?

We absolutely do not want to hide the contributors from the source
code in the public repository. The fact of maintaining and AUTHORS
file with a list of all contributors is not only acceptable, but
regarded as a bonus guarantee for our users that other eyes have
perused the code and not have found any significant shortcomings.
The problem comes with acknowledging the usage of this codebase in
binary distributions. Some of the future users of this source code are
also our current customers, and some of these customers do not want to
reveal that they are using our particular libraries for their (binary
distributed) product. Given this, let me rephrase: Can we allow these
customers not to reproduce the BSD license text even if our AUTHORS
file contains names and email addresses of people outside of our
company? Because that's really all we're after here, allowing certain
customers not to have to mention that they are using our libraries.


>> 3) When reproducing the copyright notice in binary distributions, must
>> one parse all source code files to find out all of the contributors'
>> names and include them in full? Or is it enough to simply provide a
>> LICENSE file that only credits the original author (the company that
>> made the source code available originally) so that users of the source
>> code can simply reproduce that particular file in their binary
>> distributions?
>
> This is your call. Projects often create an AUTHORS file to list
> contributors to keep things simple.
> And/or list the major contributors in the a LICENSE or COPYING.
> Again giving credits to contributors is the _right and nice thing_ to do.
> (check out the scancode-toolkit if you want to create such a list of
> copyrights, disclaimer: I am an author of it)

As mentioned above, giving credit to all contributors _in the source
code_ is something we want to do. It's the binary distributions that
we're wary of.
Thanks for the tip, we'll take

Re: [License-discuss] BSD 3-clause and copyright notices

[Philippe Ombredanne]

On Tue, Sep 29, 2015 at 6:13 PM, Zluty Sysel  wrote:
> Hi all,
>
> After conquering many hurdles along the way, it looks like the company
> I am a part of is willing to release a good part of the source code we
> own as open source software. Before we do that though there are a
> couple of outstanding issues that I was hoping someone on this mailing
> list could clarify. We want to use a BSD 3-clause and immediately
> publish the source code on a public code repository allowing
> contributions from users. The questions that have arisen are the
> following:
>
> 1) Clause 2 requires users that distribute the software in binary form
> to reproduce the copyright notice. Since the holder of the copyright
> notice is the very same company that makes the source code available
> to them, would it be possible to selectively waiver this obligation to
> a particular set of users without infringing on the Open Source
> definition or the BSD license itself?
> If the answer was negative, would including the existence of such a
> waiver in the license itself preclude it from being considered an open
> source software license?

As the copyright holder you can do as you please.
You do not need to attribute yourself for your own code, though that
is of course nice anyway ;)
No need for a waiver.
A waiver would be rather an awkward and weird thing.

> 2) When accepting contributions to the source code repository from
> external sources, I have seen that is sometimes customary to include
> an additional copyright line to the license text included at the top
> of the source file, crediting the person or company that contributed
> the new code or file.

Either that or an author file. Simpler is better.

> Would then the waiver mentioned in question 1) be in violation of the
> additional copyright holder(s)' rights?

May be not in violation of their rights but in contradiction with your
eventual obligations.

Think about it this way:
What if you were such an external contributor: you worked hard to
provide code enhancements to this project.
And as a thank you note, you have . nothing. This would not be
great, would it?


> 3) When reproducing the copyright notice in binary distributions, must
> one parse all source code files to find out all of the contributors'
> names and include them in full? Or is it enough to simply provide a
> LICENSE file that only credits the original author (the company that
> made the source code available originally) so that users of the source
> code can simply reproduce that particular file in their binary
> distributions?

This is your call. Projects often create an AUTHORS file to list
contributors to keep things simple.
And/or list the major contributors in the a LICENSE or COPYING.
Again giving credits to contributors is the _right and nice thing_ to do.
(check out the scancode-toolkit if you want to create such a list of
copyrights, disclaimer: I am an author of it)

> Thank you in advance,

In summary, my 2 cents: The BSD license is simple, so keep things simple.
You do not need to credit yourself in your own redistribution.
Forget about adding waivers or other weird things to it: the weirder
your license, the less likely anyone will want to contribute anything.
I would not touch code with such a weird waiver (even with a very long
pole).
And If you are lucky enough to ever receive contributions from others,
giving credit whether required or not is _always_ the right thing and
the nice thing to do.

Embrace open source and be happy!

And IANAL, TINLA
-- 
Cordially
Philippe Ombredanne
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Re: [License-discuss] BSD 3-clause and copyright notices

[Henrik Ingo]

On Tue, Sep 29, 2015 at 5:13 PM, Zluty Sysel  wrote:
> Hi all,
>
> After conquering many hurdles along the way, it looks like the company
> I am a part of is willing to release a good part of the source code we
> own as open source software. Before we do that though there are a
> couple of outstanding issues that I was hoping someone on this mailing
> list could clarify. We want to use a BSD 3-clause and immediately
> publish the source code on a public code repository allowing
> contributions from users. The questions that have arisen are the
> following:
>
> 1) Clause 2 requires users that distribute the software in binary form
> to reproduce the copyright notice. Since the holder of the copyright
> notice is the very same company that makes the source code available
> to them, would it be possible to selectively waiver this obligation to
> a particular set of users without infringing on the Open Source
> definition or the BSD license itself?

Yes and no.

Since your employer owns the copyright to this software, they of
course have the right to issue any licenses to it that they want. One
such license could bd BSD+waiver, to a specific list of recipients. If
these recipients are your customers, you would probably send them a
letter with such text. Alternatively you could publish the waiver on
your website, etc. Doing this would not be unheard of.

However, since you intend to receive outside contributions, this
becomes trickier. You cannot issue a waiver on behalf of the other
developers who will own copyrights to the code they have contributed.

> If the answer was negative, would including the existence of such a
> waiver in the license itself preclude it from being considered an open
> source software license?

Well, it would no longer be the BSD license and hence it would not be
an OSI approved open source license.

A license with such a waiver may still be open source in the sence
that it would conform to the Open Source Definition. However, if you
wanted general approval for it, you would have to submit it to OSI
review as a new license. I think it's a fair estimate that you might
not succeed in having such a modified license approved though.


> 2) When accepting contributions to the source code repository from
> external sources, I have seen that is sometimes customary to include
> an additional copyright line to the license text included at the top
> of the source file, crediting the person or company that contributed
> the new code or file.
> Would then the waiver mentioned in question 1) be in violation of the
> additional copyright holder(s)' rights?

Yes, as I explained above.

There are some practices in the open source community that could still
help you get around this. For example sometimes a central copyright
holder may require other contributors to assign their rights to the
central entity. (This can be either a for-profit or non-profit
corporation.) In this case the problem goes away, since your employer
would continue to own rights to 100% of the code. Note however that
such contributor agreements / IPR assignments are somewhat unpopular
in the community. The main reasons behind that are that a) they add
bureacratic overhead to the act of contributing, and b) they add
inequality to the contributor community, for example the central
entity may use its right to include the contributed code in closed
source products. In your case, since the code is BSD licensed anyway,
the b) concern may not be so important.

You could also simply say that contributors must accept the waiver,
otherwise you won't receive their contribution. For added legal
safety, you should probably require some kind of signed acceptance of
this. Thus the bureucratic overhead is equivalent to a contributor
agreement anyway.

> 3) When reproducing the copyright notice in binary distributions, must
> one parse all source code files to find out all of the contributors'
> names and include them in full? Or is it enough to simply provide a
> LICENSE file that only credits the original author (the company that
> made the source code available originally) so that users of the source
> code can simply reproduce that particular file in their binary
> distributions?

Yes, I suppose. I don't think this is commonly done though. I've seen
Oracle do it for a short while when they acquired MySQL, but I don't
think they do it anymore.

The BSD requires one to reproduce "The above copyright notice". One
way to avoid this problem would be to enforce a style where the
copyright notice is always the same, such as "The Foo project" or
"MyCompany and contributors". This way it doesn't matter which
individual contributed to each source file. You should of course in
that case maintain some other file, perhaps CONTRIBUTORS.TXT, to
credit the contributors to the proj

[License-discuss] BSD 3-clause and copyright notices

[Zluty Sysel]

Hi all,

After conquering many hurdles along the way, it looks like the company
I am a part of is willing to release a good part of the source code we
own as open source software. Before we do that though there are a
couple of outstanding issues that I was hoping someone on this mailing
list could clarify. We want to use a BSD 3-clause and immediately
publish the source code on a public code repository allowing
contributions from users. The questions that have arisen are the
following:

1) Clause 2 requires users that distribute the software in binary form
to reproduce the copyright notice. Since the holder of the copyright
notice is the very same company that makes the source code available
to them, would it be possible to selectively waiver this obligation to
a particular set of users without infringing on the Open Source
definition or the BSD license itself?
If the answer was negative, would including the existence of such a
waiver in the license itself preclude it from being considered an open
source software license?

2) When accepting contributions to the source code repository from
external sources, I have seen that is sometimes customary to include
an additional copyright line to the license text included at the top
of the source file, crediting the person or company that contributed
the new code or file.
Would then the waiver mentioned in question 1) be in violation of the
additional copyright holder(s)' rights?

3) When reproducing the copyright notice in binary distributions, must
one parse all source code files to find out all of the contributors'
names and include them in full? Or is it enough to simply provide a
LICENSE file that only credits the original author (the company that
made the source code available originally) so that users of the source
code can simply reproduce that particular file in their binary
distributions?

Thank you in advance,

Zluty
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Re: [License-discuss] Copyright holders evolution with MIT license

[Aurélien Thierry]

Thank you for the answer, I'll list them this way!

Aurélien

2015-06-09 18:03 GMT+02:00 Johnny A. Solbu :

> On Tuesday 9. June 2015 17.15, Aurélien Thierry wrote:
> > What should it be in the new release ? Should it include the previous
> > statement as follows:
> > "Copyright (c) 2015 Company2
> > Copyright (c) 2014 Company1"
> > ?
>
> My suggestion would be to list the companies with the oldest entry first.
> I would do this:
> Copyright (c) 2014 Company1
> Copyright (c) 2015 Company2
>
> That is what we do when translating .po files.
>
> --
> Johnny A. Solbu
> web site,   http://www.solbu.net
> PGP key ID: 0xFA687324
>
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Re: [License-discuss] Copyright holders evolution with MIT license

[Johnny A. Solbu]

On Tuesday 9. June 2015 17.15, Aurélien Thierry wrote:
> What should it be in the new release ? Should it include the previous
> statement as follows:
> "Copyright (c) 2015 Company2
> Copyright (c) 2014 Company1"
> ?

My suggestion would be to list the companies with the oldest entry first.
I would do this:
Copyright (c) 2014 Company1
Copyright (c) 2015 Company2

That is what we do when translating .po files.

-- 
Johnny A. Solbu
web site,   http://www.solbu.net
PGP key ID: 0xFA687324


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[License-discuss] Copyright holders evolution with MIT license

[Aurélien Thierry]

Hello,
I have a question regarding the copyright holders of a software under the
MIT license.

My case is this one :
- Some software was developped under the MIT license in Company1 in 2014
- The software is now (2015) developped by Company2 and will be released
under the same MIT license

The initial copyright clause is :
"Copyright (c) 2014 Company1"

What should it be in the new release ? Should it include the previous
statement as follows:
"Copyright (c) 2015 Company2
Copyright (c) 2014 Company1"
?

I guess there should be a way to keep track of copyright holders ("The
above copyright notice [...] shall be included in all copies or substantial
portions of the Software.") but I'm not sure how.


Thank you for your attention,
Aurelien
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[John Cowan]

Lawrence Rosen scripsit:

> I do so because my clients expect to profit (either financially or
> in reputation credits) for delivering comprehensive solutions that
> include FOSS components.

It's kind of hard to see how this could be the case for releasing a
compilation under the GPL.  There's no money in it, and people don't
get a good reputation when they do things others find incomprehensible:
quite the reverse.  That is not to say it is not a Good Thing in itself.

-- 
Normally I can handle panic attacks on my own;   John Cowan 
but panic is, at the moment, a way of life.  http://www.ccil.org/~cowan
--Joseph Zitt
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Patrice-Emmanuel Schmitz]

This is indeed depending on the case: people (developers) always declare (often 
after the work has been done, and not before as it should be) that they "used" 
products X,Y, Z. But what do they mean by "use"? Aggregating? Linking? Copying 
only some APIs or data formats in order to ensure that software is 
interoperable? Or really merging their code with the existing one? Depending on 
the case, solution will differ, but the need for simplifying (or just making 
legally possible) distribution is there. Cases are indeed multiple, and these 
developers want to license under FOSS conditions (not proprietary). 
Incompatibilities between copyleft FOSS licences (including between GPLv2 only 
and GPLv3 only) produce a lot of FUD in such cases...

Patrice-Emmanuel Schmitz

On 11 sept. 2013, at 16:00, "Bradley M. Kuhn"  wrote:

> Patrice-Emmanuel Schmitz wrote at 04:31 (EDT):
>> Frequent cases are submitted when developers (in particular European
>> administrations and Member states) have build applications from
>> multiple components, plus adding their own code, and want to use a
>> single license for distributing the whole compilation.
> 
> While the description you give there is a bit too vague to analyze
> against the USA copyright statue (i.e., the example lacks any real world
> facts), I'd suspect that the default case of that situation, at least in
> the USA, is the creation of a new single work that derives from those
> components, plus their own code.
> 
> The compilation copyright situation, at least in the USA, comes up more
> with putting a bunch of unrelated works on the same medium, like a CD
> ISO image.  Making a single work of software that includes many
> components is very different from mere compilation.
> -- 
>   -- bkuhn
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Lawrence Rosen]

Nick Yeates asked:
> Larry did not state *why* he advises use of this licensing strategy 
> from a business, social or other standpoint.

I do so because my clients expect to profit (either financially or in
reputation credits) for delivering comprehensive solutions that include FOSS
components. That's a business and social good. They are entitled to choose
their own license for their collective works or compilations.

I don't care a fig for the claims of GPL licensors that everything that
touches their code must be under the GPL, although please don't accuse me of
trying to infringe their works. I insist that my clients honor the demands
of GPL licensors that THEIR components be under an enforceable GPL. That is
why I want to see software companies fully disclose the FOSS components (and
licenses) in their software, even as they distribute the overall programs
(including perhaps its proprietary parts) under licenses of their choice.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Rd., Ukiah, CA 95482
Office: 707-485-1242
Linkedin profile: http://linkd.in/XXpHyu 


-Original Message-
From: Nick Yeates [mailto:nyeat...@umbc.edu] 
Sent: Tuesday, September 10, 2013 12:35 PM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] Red Hat compilation copyright & RHEL contract

>From http://www.redhat.com/f/pdf/corp/RH-3573_284204_TM_Gd.pdf
> At the same time, the combined body of work that constitutes Red HatR 
> Enterprise LinuxR is a collective work which has been organized by Red 
> Hat, and Red Hat holds the copyright in that collective work.

Bradley Kuhn wrote at 15:46 on Monday:
> . It's admittedly a strange behavior,
> and I've been asking Red Hat Legal for many years now to explain 
> better why they're doing this and what they believe it's accomplishing.

Larry Rosen wrote at 23:28 on Thursday:
> I often recommend that licensing method to those of my clients who 
> combine various FOSS works into a single software package. It isn't 
> odd at all. Even if GPL applies to one or more of those internal 
> components, there is no need to license the entire collective work 
> under the GPL. We've even distributed GPL software as part of collective
works under the OSL.

I too am curious what this "compilation license"ing is and what its benefits
are. Mr Kuhn asked, and Larry responded saying basically 'its not so odd - I
use it often' and Larry did not state *why* he advises use of this licensing
strategy from a business, social or other standpoint.

1) Why larry?
2) What is the "standard" way of doing this? How do most other org's license
many works together?

Full disclosure: I work for Red Hat, though am writing this from my personal
account and perspective. I am a beginner on my knowledge into OSS license
details, so please realize that I am attempting to learn. I could go and ask
around in my company about this, yet I would rather engage with the
community on this for now.

-Nick Yeates
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Bradley M. Kuhn]

Patrice-Emmanuel Schmitz wrote at 04:31 (EDT):
> Frequent cases are submitted when developers (in particular European
> administrations and Member states) have build applications from
> multiple components, plus adding their own code, and want to use a
> single license for distributing the whole compilation.

While the description you give there is a bit too vague to analyze
against the USA copyright statue (i.e., the example lacks any real world
facts), I'd suspect that the default case of that situation, at least in
the USA, is the creation of a new single work that derives from those
components, plus their own code.

The compilation copyright situation, at least in the USA, comes up more
with putting a bunch of unrelated works on the same medium, like a CD
ISO image.  Making a single work of software that includes many
components is very different from mere compilation.
-- 
   -- bkuhn
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Patrice-Emmanuel Schmitz]

Nick Yeates wrote:>I too am curious what this "compilation license"ing is
and what its benefits are. Mr Kuhn >asked, and Larry responded saying
basically 'its not so odd - I use it often' and Larry did >not state *why*
he advises use of this licensing strategy from a business, social or other
>standpoint.
>
>1) Why?
>2) What is the "standard" way of doing this?

Frequent cases are submitted when developers (in particular European
administrations and Member states) have build applications from multiple
components, plus adding their own code, and want to use a single license
for distributing the whole compilation. In many cases their policy is to
use the European Union Public Licence (EUPL) for administrative or
linguistic reasons (using a license with working value in multiple
languages). Therefore I published a matrix on Joinup (
https://joinup.ec.europa.eu/software/page/eupl/eupl-compatible-open-source-licences
).
(the matrix should be updated due to new license versions, i.e. the recent
OSI-approved CeCILL 2.1 which is now fully EUPL and GPL compatible)



2013/9/10 Nick Yeates 

> From http://www.redhat.com/f/pdf/corp/RH-3573_284204_TM_Gd.pdf
> > At the same time, the combined body of work that constitutes Red Hat®
> > Enterprise Linux® is a collective work which has been organized by Red
> > Hat, and Red Hat holds the copyright in that collective work.
>
> Bradley Kuhn wrote at 15:46 on Monday:
> > … It's admittedly a strange behavior,
> > and I've been asking Red Hat Legal for many years now to explain better
> > why they're doing this and what they believe it's accomplishing.
>
> Larry Rosen wrote at 23:28 on Thursday:
> > I often recommend that licensing method to those of my clients who
> combine
> > various FOSS works into a single software package. It isn't odd at all.
> Even
> > if GPL applies to one or more of those internal components, there is no
> need
> > to license the entire collective work under the GPL. We've even
> distributed
> > GPL software as part of collective works under the OSL.
>
> I too am curious what this "compilation license"ing is and what its
> benefits are. Mr Kuhn asked, and Larry responded saying basically 'its not
> so odd - I use it often' and Larry did not state *why* he advises use of
> this licensing strategy from a business, social or other standpoint.
>
> 1) Why larry?
> 2) What is the "standard" way of doing this? How do most other org's
> license many works together?
>
> Full disclosure: I work for Red Hat, though am writing this from my
> personal account and perspective. I am a beginner on my knowledge into OSS
> license details, so please realize that I am attempting to learn. I could
> go and ask around in my company about this, yet I would rather engage with
> the community on this for now.
>
> -Nick Yeates
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>



-- 
Patrice-Emmanuel Schmitz
pe.schm...@googlemail.com
tel. + 32 478 50 40 65
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Re: [License-discuss] Al Re: Red Hat compilation copyright & RHEL contract

[Bradley M. Kuhn]

> Quoting Luis Villa (l...@lu.is):
>> We have dropped "Al" from the list, as we believe he is Alexander
>> Terekhov, and he refused to deny it when asked. 

Rick Moen wrote at 18:28 (EDT) on Monday:
> The authorial 'voice' matches.

Even so, I wasn't completely convinced that Al Foxtone was Terekhov
myself, but I leave it to the listadmins to decide who's who. :)
 
> On Mon, Sep 9, 2013 at 10:32 AM, Bradley M. Kuhn  wrote:
>> [0] And, to be clear to those who seem to have missed this point: I
>> *don't* agree with Al's accusations/insinuations.  In fact, I'm
>> arguing against them, in case you missed it.

Anyway, my footnote comment that Luis quoted above wasn't intended
toward Al anyway, FWIW. :)
-- 
   -- bkuhn
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Rick Moen]

Quoting Nick Yeates (nyeat...@umbc.edu):

> I too am curious what this "compilation license"ing is...

Copyright law recognises the possiblity of an abstract property called a
'compilation copyright', that being the ownership interest gained by
someone who _creatively_ collects and assembles other people's works in
such a way that the collective set can be legitimately seen as _itself_
constituting an original work of authorship.

An example would be the editor of a short-story anthology collecting and
arranging other people's stories to create a themed book.  Copyright law
recognises that the act of picking stories and arranging them and
presenting them in a particular way is an act of creation deserving of
recognition as an abstract property, completely aside from the copyright
title existing in the constituent works.

When I operated a dial-up BBS from (if memory serves) 1988 to 1993, my
Policies bulletin asserted that I owned compilation copyright over the
design and implementation of the BBS as a whole.

Your term 'compilation licence', or whatever it was that people said
upstream seems to refer to Red Hat's published policy asserting a
compilation copyright over RHEL as a whole.

By the way, when the whole 'Red Hat is violating other people's
copyrights' drumbeat started in the early 2000s, I did my best to FAQ
the extant situation.  (I make no apologies if things have changed since
then, but I doubt they have changed much.)
http://linuxmafia.com/faq/RedHat/rhel-isos.html

(If memory serves, the situation was then new enough that I merely
speculated that RH asserts compilation copyright.  It does, and grants
GPLv2 redistribution permission to its rights over the collective work,
while clarifying at the same time that their conveyance does not include
any right to transgress Red Hat's trademark rights.)

> ...and what its benefits are.

Mu.

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Re: [License-discuss] Al Re: Red Hat compilation copyright & RHEL contract

[Luis Villa]

On Tue, Sep 10, 2013 at 6:42 AM, Bradley M. Kuhn  wrote:
>> Quoting Luis Villa (l...@lu.is):
>>> We have dropped "Al" from the list, as we believe he is Alexander
>>> Terekhov, and he refused to deny it when asked.
>
> Rick Moen wrote at 18:28 (EDT) on Monday:
>> The authorial 'voice' matches.
>
> Even so, I wasn't completely convinced that Al Foxtone was Terekhov
> myself, but I leave it to the listadmins to decide who's who. :)
>
>> On Mon, Sep 9, 2013 at 10:32 AM, Bradley M. Kuhn  wrote:
>>> [0] And, to be clear to those who seem to have missed this point: I
>>> *don't* agree with Al's accusations/insinuations.  In fact, I'm
>>> arguing against them, in case you missed it.
>
> Anyway, my footnote comment that Luis quoted above wasn't intended
> toward Al anyway, FWIW. :)

My apologies for making assumptions, but it seemed as good a time as
any to point out the problem and solution :)

Luis
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Nick Yeates]

>From http://www.redhat.com/f/pdf/corp/RH-3573_284204_TM_Gd.pdf
> At the same time, the combined body of work that constitutes Red Hat®
> Enterprise Linux® is a collective work which has been organized by Red
> Hat, and Red Hat holds the copyright in that collective work.

Bradley Kuhn wrote at 15:46 on Monday:
> … It's admittedly a strange behavior,
> and I've been asking Red Hat Legal for many years now to explain better
> why they're doing this and what they believe it's accomplishing.

Larry Rosen wrote at 23:28 on Thursday:
> I often recommend that licensing method to those of my clients who combine
> various FOSS works into a single software package. It isn't odd at all. Even
> if GPL applies to one or more of those internal components, there is no need
> to license the entire collective work under the GPL. We've even distributed
> GPL software as part of collective works under the OSL. 

I too am curious what this "compilation license"ing is and what its benefits 
are. Mr Kuhn asked, and Larry responded saying basically 'its not so odd - I 
use it often' and Larry did not state *why* he advises use of this licensing 
strategy from a business, social or other standpoint.

1) Why larry?
2) What is the "standard" way of doing this? How do most other org's license 
many works together?

Full disclosure: I work for Red Hat, though am writing this from my personal 
account and perspective. I am a beginner on my knowledge into OSS license 
details, so please realize that I am attempting to learn. I could go and ask 
around in my company about this, yet I would rather engage with the community 
on this for now.

-Nick Yeates
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Re: [License-discuss] Al Re: Red Hat compilation copyright & RHEL contract

[Rick Moen]

Quoting Luis Villa (l...@lu.is):

> We have dropped "Al" from the list, as we believe he is Alexander
> Terekhov, and he refused to deny it when asked. 

The authorial 'voice' matches.

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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[John Cowan]

Bradley M. Kuhn scripsit:

> Patches are typical derivative works themselves of the original work.

That's a very debatable point, though I doubt there is much point in
debating it here yet again.  My view is that a patch by itself makes
only fair use of the original, though it's true that a *patched work*
is a derivative work.  (That assumes the patch is substantial and not
de minimis, of course.)

IANAL, TINLA.

-- 
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develop schemas is one of the simplehttp://www.ccil.org/~cowan
pleasures in life
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[License-discuss] Al Re: Red Hat compilation copyright & RHEL contract

[Luis Villa]

FYI re Al:

On Mon, Sep 9, 2013 at 10:32 AM, Bradley M. Kuhn  wrote:
>
> [0] And, to be clear to those who seem to have missed this point: I
> *don't* agree with Al's accusations/insinuations.  In fact, I'm
> arguing against them, in case you missed it.

We have dropped "Al" from the list, as we believe he is Alexander
Terekhov, and he refused to deny it when asked. Apologies that this
took several days longer than it should have.

Luis
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Bradley M. Kuhn]

John Cowan wrote at 19:42 (EDT) on Thursday:
> So it's perfectly parallel, reading "packages" for "patches".

Not quite, the details are different since it's different parts of the
copyright controls.  Patches are typical derivative works themselves of
the original work.  Thus, both the "arrangement/compilation" copyright
control *and* the "preparation and distribution of derivative works"
control are *both* involved when a maintainer selects and arranges all
patches for the final release.

Meanwhile, this "copyright of the CD" is probably just a
compilation/arrangement issue.
 

> I agree that I don't know of anyone else who has done this.

... except Larry's clients, apparently. :)
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Bradley M. Kuhn]

Rick Moen wrote at 16:55 (EDT) on Friday:
> You seem to be trying to imply without saying so that the
> source-access obligations of copyleft licences somehow give you
> additional rights in other areas _other_ than source acccess.  What
> I'm saying is, no, that's just not the case.

GPL (and other copylefts too) *do* give other rights downstream, beyond
source access, of course.

While I really disagree with how Al has been raising these suspicions,
*if* Al has any valid argument [0], it would relate to other provisions
of GPL, and not the source-code provisions in GPLv2§3 and GPLv3§6.


[0] And, to be clear to those who seem to have missed this point: I
*don't* agree with Al's accusations/insinuations.  In fact, I'm
arguing against them, in case you missed it.
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Bradley M. Kuhn]

Al Foxone wrote at 04:18 (EDT) on Saturday:
> en.opensuse.org/openSUSE:License This agreement governs your download,
> installation, or use of openSUSE 12.3 and its ...The openSUSE Project
> grants to you a license to this collective work pursuant to
> the ...openSUSE 12.3 is a modular Linux operating system consisting
> of ...

Is SUSE licensing that compilation/arrangement copyright under GPL,
though, or a broad permissive license?  Looks like the latter, from
the selective quoting you give above.
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Al Foxone]

On Friday, September 6, 2013, John Cowan  wrote:

>  I agree that I don't know of anyone else who has done this.

from google:

www.novell.com/.../eula/.../sles_11_en.p...SUSE® Linux Enterprise Server
11 ... The Software is a collective work of Novell; althoughNovell does not
own the ...

en.opensuse.org/openSUSE:License
This agreement governs your download, installation, or use of openSUSE 12.3
and its ...The openSUSE Project grants to you a license to this collective
work pursuant to the ...openSUSE 12.3 is a modular Linux operating system
consisting of ...
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract (was Re: License incompatibility)

[Rick Moen]

Quoting Al Foxone (akvariu...@gmail.com):

> My understanding is that the GPL applies to object code aside from
> source-access obligations.

[Reminder:  There _are_ other copyleft licences.  In RHEL, even.]

Show me an object-code RPM in RHEL for which Red Hat, Inc. do not
provide the open source / free software source code under the specified
copyleft or permissive licence, then

You'll pardon me if I don't hold my breath waiting.

You seem to be trying to imply without saying so that the source-access
obligations of copyleft licences somehow give you additional rights in
other areas _other_ than source acccess.  What I'm saying is, no, that's
just not the case.

Many people dislike that fact.  You're hardly the first.  

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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Lawrence Rosen]

Bradley Kuhn asked:
> It's odd in that Red Hat is the only entity that I know of to ever claim 
> this sort of licensing explicitly.  Are there any other examples?
> 
> When I think of compilation and arrangement copyright on copylefted
> software, I'm usually focused on things like "the maintainer chose 
> which patches were appropriate and which ones weren't for the
> release" within a single package, and not "big software archive, with
> lots of different Free Software works under different Free Software 
> licenses".  Again, I'm *not* saying the latter is an invalid or
problematic
> use of copyleft -- I chose my words carefully: it's odd, as in "beyond or
> deviating from the usual or expected". :)

I often recommend that licensing method to those of my clients who combine
various FOSS works into a single software package. It isn't odd at all. Even
if GPL applies to one or more of those internal components, there is no need
to license the entire collective work under the GPL. We've even distributed
GPL software as part of collective works under the OSL. 

Of course, the original GPL applies to the original component, and always
will.

/Larry


-Original Message-
From: Bradley M. Kuhn [mailto:bk...@ebb.org] 
Sent: Tuesday, September 03, 2013 11:19 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] Red Hat compilation copyright & RHEL contract

John Cowan wrote at 14:56 (EDT) on Monday:
> I don't see where the oddity comes in.  If we grant that the 
> compilation which is RHEL required a creative spark in the selection 
> (for the arrangement is mechanical), then it is a fit object of 
> copyright.

It's odd in that Red Hat is the only entity that I know of to ever claim
this sort of licensing explicitly.  Are there any other examples?

When I think of compilation and arrangement copyright on copylefted
software, I'm usually focused on things like "the maintainer chose which
patches were appropriate and which ones weren't for the release" within a
single package, and not "big software archive, with lots of different Free
Software works under different Free Software licenses".  Again, I'm
*not* saying the latter is an invalid or problematic use of copyleft -- I
chose my words carefully: it's odd, as in "beyond or deviating from the
usual or expected". :)
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract (was Re: License incompatibility)

[Al Foxone]

On Wed, Sep 4, 2013 at 4:30 AM, Rick Moen  wrote:
> Quoting Al Foxone (akvariu...@gmail.com):
>
>> Red Hat customers receive RHEL compilation as a whole in ready for use
>> binary form but Red Hat claims that it can not be redistributed in
>> that original form due to trademarks (without additional trademark
>> license, says Red Hat) and under pay-per-use-unit restrictive
>> contract. I would not call that GPL.
>
> You're entitled to be mistaken.
> Last I checked, all source-access obligations under GPLv3, GPLv2, and

My understanding is that the GPL applies to object code aside from
source-access obligations. Suppose I bought let's say 'install
package' from Red Hat and want to help my neighbour by simply giving
him a copy of that stuff or say a copy of a VM image with RHEL
installed and running so to speak. Note there is absolutely no
confusion that this is really really original Red Hat stuff (not
something made by some other entity) so I don't quite understand why
should I need a trademark license... hope this clarifies what I mean
(suppose also that no Red Hat services will be used by neighbour).
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[John Cowan]

Bradley M. Kuhn scripsit:

> When I think of compilation and arrangement copyright on copylefted
> software, I'm usually focused on things like "the maintainer chose which
> patches were appropriate and which ones weren't for the release" 

So it's perfectly parallel, reading "packages" for "patches".  I agree
that I don't know of anyone else who has done this.

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Re: [License-discuss] Red Hat compilation copyright & RHEL contract (was Re: License incompatibility)

[Rick Moen]

Quoting Al Foxone (akvariu...@gmail.com):

> Red Hat customers receive RHEL compilation as a whole in ready for use
> binary form but Red Hat claims that it can not be redistributed in
> that original form due to trademarks (without additional trademark
> license, says Red Hat) and under pay-per-use-unit restrictive
> contract. I would not call that GPL.

You're entitled to be mistaken.
Last I checked, all source-access obligations under GPLv3, GPLv2, and
other applicable copyleft licences were being fully complied with here:
ftp://ftp.redhat.com/pub/redhat/linux/

The choice of licence for the asserted compilation copyright is indeed a
little weird, but it's rather unlikely to be adjudicated.  Contract and
trademark are a different matter.

My recollection is that Red Hat, Inc. assert trademark encumbrances
concerning two non-software SRPMs containing artwork, etc.  Those two
are not asserted to be GPL, so it doesn't matter what you 'call it', I
think.
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Bradley M. Kuhn]

Al Foxone wrote at 07:57 (EDT):
> Red Hat customers receive RHEL compilation as a whole in ready for use
> binary form but Red Hat claims that it can not be redistributed in
> that original form due to trademarks (without additional trademark
> license, says Red Hat) and under pay-per-use-unit restrictive
> contract.

Do you have evidence that Red Hat's trademark requirements aren't of the
nature that are permitted by GPLv3§7(e) and similar clauses in other
Free Software licenses?  Nothing you said above seems to be such
evidence.

> (quoting Red Hat Enterprise Agreement with [snip] editing)

Noting your [snip], you selectively quoted from the RHEA.
I admit it's been many years since I reviewed the RHEA in detail,
and my arguments are based on that old version I read.  If it has
changed in some way that now causes a new problem under GPL, I'm just
not following your arguments as to why.

> My understanding is that when the GPL licensee distributes copies of
> derivative works prepared under the GPL permission, the GPL insists on
> licensing the copyright in a derivative work under the GPL and only
> the GPL.

Correct, AFAIK.

> Since creation of derivative work (and even distribution of
> adaptations under 17 U.S.C. 117) requires permission I can understand
> that demand. ... Please prove me wrong. :-)

You seem to be arguing that RHEA has some sort of GPLv2§6/7 (or
GPLv3§10/12) problem.  However, you've not shown any evidence for that.
Determining such a violation likely hinges on what Red Hat's restrictions
on their customer are if the customer fails to comply with RHEA.


Meanwhile, I've spent the plurality of my life enforcing the GPL and other
copyleft licenses.  I hope based on that you'll take seriously my next point:
it's unfair and aggressive to publicly accuse and/or insinuate that someone
is violating the GPL without exhausting non-public remedies first.

If you believe someone is actually violating the GPL but need help
collecting the facts, you should report it to the copyright holders,
not a license-discuss list.

At the very least, it seems this subthread is more appropriate for
http://lists.gpl-violations.org/mailman/listinfo/legal/
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract

[Bradley M. Kuhn]

John Cowan wrote at 14:56 (EDT) on Monday:
> I don't see where the oddity comes in.  If we grant that the
> compilation which is RHEL required a creative spark in the selection
> (for the arrangement is mechanical), then it is a fit object of
> copyright.

It's odd in that Red Hat is the only entity that I know of to ever
claim this sort of licensing explicitly.  Are there any other examples?

When I think of compilation and arrangement copyright on copylefted
software, I'm usually focused on things like "the maintainer chose which
patches were appropriate and which ones weren't for the release" within
a single package, and not "big software archive, with lots of different
Free Software works under different Free Software licenses".  Again, I'm
*not* saying the latter is an invalid or problematic use of copyleft --
I chose my words carefully: it's odd, as in "beyond or deviating from
the usual or expected". :)
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Re: [License-discuss] Red Hat compilation copyright & RHEL contract (was Re: License incompatibility)

[Al Foxone]

On Mon, Sep 2, 2013 at 5:46 PM, Bradley M. Kuhn  wrote:

> Al Foxone asked me on Friday at 13:58 (EDT) about:
>> http://www.redhat.com/f/pdf/corp/RH-3573_284204_TM_Gd.pdf
> ...
>> At the same time, the combined body of work that constitutes Red Hat®
>> Enterprise Linux® is a collective work which has been organized by Red
>> Hat, and Red Hat holds the copyright in that collective work. Red Hat
>> then permits others to copy, modify and redistribute the collective
>> work. To grant this permission Red Hat usually uses the GNU General
>> Public License (“GPL”) version 2 and Red Hat’s own End User License
>> Agreement."
>
> It's certainly possible to license all sorts of copyrights under GPL,
> since it's a copyright license.  Red Hat has chosen, IMO rather oddly,
> to claim strongly a compilation copyright on putting together RHEL and
> Red Hat licenses that copyright under terms of GPL.

Red Hat customers receive RHEL compilation as a whole in ready for use
binary form but Red Hat claims that it can not be redistributed in
that original form due to trademarks (without additional trademark
license, says Red Hat) and under pay-per-use-unit restrictive
contract. I would not call that GPL.

>
> It's certainly possible to do that.  It's admittedly a strange behavior,
> and I've been asking Red Hat Legal for many years now to explain better
> why they're doing this and what they believe it's accomplishing.  I've
> yet to receive a straight answer.  Can anyone from Red Hat on the list
> tell us if Red Hat Legal's answer remains: "No comment"?
>
>> I doubt that "Red Hat’s own End User License Agreement" is
>> 'compatible' (according to you) with the GPL'd components in that
>> combined work as whole. Anyway, that combined work as a whole must be
>> full of proclaimed 'incompatibly' licensed components (once again
>> according to you). How come that this is possible?
>
> However, don't conflate RHEL's compilation copyright issue with the RHEL
> customer contract.  They're mostly unrelated issues.  The RHEL customer
> contract has long been discussed, and it amounts to a "if you exercise
> your rights under GPL, your money is no good here" arrangement.

Money is no good?

(quoting Red Hat Enterprise Agreement with [snip] editing)

"Client agrees to pay Red Hat the applicable Fees for each Unit.
"Unit" is the measurement of Software or [snip] usage defined in the
applicable Order Form.

...

5.1 Reporting. Client will notify Red Hat (or the Business Partner
from whom Client purchased Software or [snip]) promptly if the actual
number of Units of Software or [snip] utilized by Client exceeds the
number of Units for which Client has paid the applicable Fees. In its
notice, Client will include the number of additional Units and the
date(s) on which such Units were first utilized. Red Hat (or the
Business Partner) will invoice Client for the applicable Services for
such Units and Client will pay for such Services no later than thirty
(30) days from the date of the invoice.

5.2 Inspection. During the term of this Agreement and for one (1) year
thereafter, Red Hat or its designated agent may inspect Client's
facilities and records to verify Client's compliance with this
Agreement. Any such inspection will take place only during Client's
normal business hours and upon no less than ten (10) days prior
written notice from Red Hat. Red Hat will give Client written notice
of any noncompliance, including the number of underreported Units of
Software or [snip], and Client will have fifteen (15) days from the
date of this notice to make payment to Red Hat for the applicable
Services provided with respect to the underreported Units. If Client
underreports the number of Units utilized by more than five percent
(5%) of the number of Units for which Client paid, Client will also
pay Red Hat for the cost of such inspection."

> That's not an arrangement that I think is reasonable (and it's why I
> wouldn't be a RHEL customer myself), but there's nothing in GPL (that
> I'm aware of) that requires that one keep someone as a customer.
> Imagine if GPL *did* forbid firing your customers!  It'd really
> hurt independent contractors who offer Free Software support.
>
>
> Also, I encourage discerning carefully between mundane GPL violations
> and Free Software license incompatibility.  While both could be
> classified as "GPL violations", Free Software license incompatibility
> usually refers to a situation where Free Software authors seek to DTRT
> but are confused when navigating contradictions between two Free
> Software licenses for works they seek to combine.  At most, you 

Re: [License-discuss] Red Hat compilation copyright & RHEL contract (was Re: License incompatibility)

[John Cowan]

Bradley M. Kuhn scripsit:

> It's certainly possible to license all sorts of copyrights under GPL,
> since it's a copyright license.  Red Hat has chosen, IMO rather oddly,
> to claim strongly a compilation copyright on putting together RHEL and
> Red Hat licenses that copyright under terms of GPL.

I don't see where the oddity comes in.  If we grant that the compilation
which is RHEL required a creative spark in the selection (for the
arrangement is mechanical), then it is a fit object of copyright.
By licensing that selection of works under the GPL, Red Hat permits
another party (call it Teal Hat) to create and publish a derivative work
(that is, a collection based on RHEL but containing additional works,
or fewer works, or both).  But Teal Hat must *not* prevent a third party
(call it Chartreuse Hat) from creating yet a third collective work
based on Teal Hat's.  That seems to me a worthy purpose, and one that
the FSF should encourage.  RHEL is not as such free software, but it is
a free collection-of-software, as opposed to a proprietary collection
of free software.

> The RHEL customer contract has long been discussed, and it amounts to a
> "if you exercise your rights under GPL, your money is no good here"
> arrangement.  That's not an arrangement that I think is reasonable
> (and it's why I wouldn't be a RHEL customer myself), but there's
> nothing in GPL (that I'm aware of) that requires that one keep someone
> as a customer.

Indeed, it seems very reasonable to me that Red Hat doesn't want a direct
competitor as a customer.  It probably has customers that are competitors
in a more indirect sense: IBM comes to mind as a possibility.

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[License-discuss] Red Hat compilation copyright & RHEL contract (was Re: License incompatibility)

[Bradley M. Kuhn]

Al Foxone asked me on Friday at 13:58 (EDT) about:
> http://www.redhat.com/f/pdf/corp/RH-3573_284204_TM_Gd.pdf
...
> At the same time, the combined body of work that constitutes Red Hat®
> Enterprise Linux® is a collective work which has been organized by Red
> Hat, and Red Hat holds the copyright in that collective work. Red Hat
> then permits others to copy, modify and redistribute the collective
> work. To grant this permission Red Hat usually uses the GNU General
> Public License (“GPL”) version 2 and Red Hat’s own End User License
> Agreement."

It's certainly possible to license all sorts of copyrights under GPL,
since it's a copyright license.  Red Hat has chosen, IMO rather oddly,
to claim strongly a compilation copyright on putting together RHEL and
Red Hat licenses that copyright under terms of GPL.

It's certainly possible to do that.  It's admittedly a strange behavior,
and I've been asking Red Hat Legal for many years now to explain better
why they're doing this and what they believe it's accomplishing.  I've
yet to receive a straight answer.  Can anyone from Red Hat on the list
tell us if Red Hat Legal's answer remains: "No comment"?

> I doubt that "Red Hat’s own End User License Agreement" is
> 'compatible' (according to you) with the GPL'd components in that
> combined work as whole. Anyway, that combined work as a whole must be
> full of proclaimed 'incompatibly' licensed components (once again
> according to you). How come that this is possible?

However, don't conflate RHEL's compilation copyright issue with the RHEL
customer contract.  They're mostly unrelated issues.  The RHEL customer
contract has long been discussed, and it amounts to a "if you exercise
your rights under GPL, your money is no good here" arrangement.
That's not an arrangement that I think is reasonable (and it's why I
wouldn't be a RHEL customer myself), but there's nothing in GPL (that
I'm aware of) that requires that one keep someone as a customer.
Imagine if GPL *did* forbid firing your customers!  It'd really
hurt independent contractors who offer Free Software support.


Also, I encourage discerning carefully between mundane GPL violations
and Free Software license incompatibility.  While both could be
classified as "GPL violations", Free Software license incompatibility
usually refers to a situation where Free Software authors seek to DTRT
but are confused when navigating contradictions between two Free
Software licenses for works they seek to combine.  At most, you could
say "Free Software license incompatibility is a specialized case of a
potential copyleft violation".  However, that's a technically accurate
but misleading characterization, since the motives are usually
non-commercial, coupled with a desire to DTRT for the community.
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Re: [License-discuss] Copyright Free Software Foundation, but license not GPL

[Robin Winning]

Thank you very much for your cogent responses and your "insider" insight.

//Robin

On Apr 17, 2013, at 10:18 AM, Bruce Perens  wrote:

> On 4/17/2013 10:12 AM, Karl Fogel wrote:
>> Bruce Perens  writes:
>>> Karl, Robin means that the work is dedicated to FSF and placed under a
>>> BSD or MIT license. These are compatible with the GPL and FSF is fine
>>> with it.
>> Er, yes.  (Was there something I said that contradicted that?)
>> projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
> Just that Robin doesn't know as much about this, and it's really easy to 
> confuse rather than enlighten :-)
> 
> Robin, FSF's main concern is that works meet their "Four Freedoms", which the 
> permissive licenses would. They have a secondary goal of using reciprocal 
> licensing as a strategy to increase the amount of good free software, but it 
> is not my understanding that they would reject a work for being permissive.
> 
> Of course, with FSF holding the copyright they can, theoretically, determine 
> the license. However, they are much less likely to do this as long as there 
> is still an active developer running the project and the license used meets 
> the four freedoms. Richard Stallman knows through long experience that 
> pushing on developers about licensing can get them really annoyed, and the 
> FSF's director is more empathic than Richard and thus unlikely to do that 
> either.
> 
> A more modern way for a project to donate than to assign to FSF would be to 
> become a member project of the Software Freedom Conservancy. This 
> organization is very clearly on the side of Free Software but leaves the 
> control of the project in the developer's hands.
> 
>Thanks
> 
>Bruce
> 

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Re: [License-discuss] Copyright Free Software Foundation, but license not GPL

[Bruce Perens]

On 4/17/2013 10:12 AM, Karl Fogel wrote:

Bruce Perens  writes:

Karl, Robin means that the work is dedicated to FSF and placed under a
BSD or MIT license. These are compatible with the GPL and FSF is fine
with it.

Er, yes.  (Was there something I said that contradicted that?)
projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Just that Robin doesn't know as much about this, and it's really easy to 
confuse rather than enlighten :-)


Robin, FSF's main concern is that works meet their "Four Freedoms", 
which the permissive licenses would. They have a secondary goal of using 
reciprocal licensing as a strategy to increase the amount of good free 
software, but it is not my understanding that they would reject a work 
for being permissive.


Of course, with FSF holding the copyright they can, theoretically, 
determine the license. However, they are much less likely to do this as 
long as there is still an active developer running the project and the 
license used meets the four freedoms. Richard Stallman knows through 
long experience that pushing on developers about licensing can get them 
really annoyed, and the FSF's director is more empathic than Richard and 
thus unlikely to do that either.


A more modern way for a project to donate than to assign to FSF would be 
to become a member project of the Software Freedom Conservancy. This 
organization is very clearly on the side of Free Software but leaves the 
control of the project in the developer's hands.


Thanks

Bruce

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Re: [License-discuss] Copyright Free Software Foundation, but license not GPL

[Ben Tilly]

On Fri, Apr 5, 2013 at 3:14 PM, Robin Winning  wrote:
> Hi All,
> I am a contracts manager at software company, and in addition to doing
> contracts, I now find myself reviewing the licenses associated with the open
> source packages my company has acquired. I have become quite familiar with
> the GPL/LGPL/AGPL suite of licenses, as well as the other, permissive
> licenses: MIT, BSD, etc. Here's my question: quite frequently, the
> programmer makes the Free Software Foundation the copyright holder, but then
> attaches a license that is not in the GPL family. Is that a valid
> combination?
>
> In the case of "ncurses," I was able to research and determine that when
> they assigned their copyright to the Free Software Foundation, the FSF gave
> ncurses a special carve-out allowing them to use a permissive license.
> However, all the rest of the open source packages I have come across that
> assert "Copyright Free Software Foundation" but are accompanied by non-GPL
> licenses do not seem to have that sort of special arrangement.
>
> Maybe I'm overthinking this, but it seems contradictory to me, and I don't
> know how to characterize the license in terms of permissive or restrictive.
>
> Thank you,
> Robin

I would suggest that you contact the FSF with the question, and a
specific list of developers, projects, and licenses.  The FSF is
pretty good about keeping records of actual copyright assignments to
them, and can verify which of those they own copyright to, and what
license(s) they are under.  If the copyright has been properly
assigned to the FSF, it is under whatever license the FSF says, no
matter what the developer thinks.

In most of these cases the developer probably has just borrowed a
copyright statement from someone else and has not assigned copyright.
At that point, how far deep in the rabbit hole do you want to go?  The
programmer almost certainly wrote the software in question, and there
is a good chance that the programmer is the copyright holder.  In that
case their license goes, no matter who they think owns that copyright.
 However depending on the location that the programmer lives, the
details of their employment contract, etc, there is a real possibility
that the work is a work for hire and is technically owned by a company
that likely has no idea that said software exists, or that they have a
legal claim to it.  This situation is surprisingly common, and almost
never causes anyone problems.  If it does cause problems, I've never
heard of anything happening to anyone other than the unlucky
programmer beyond being told that the copyright is not what you
thought it was, could you please stop using it.  In the bizarre case
where someone wanted to pursue it farther, you've got a pretty solid
defense for past infringements because you were going on your
reasonable belief about the license based on what you were told.

I have been told in the past that the FSF is very aware of this
potential can of worms, and that is why they keep careful records to
make sure that they actually own the copyrights that they think they
own.

IANAL and TINLA.
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Re: [License-discuss] Copyright Free Software Foundation, but license not GPL

[Karl Fogel]

Bruce Perens  writes:
>Karl, Robin means that the work is dedicated to FSF and placed under a
>BSD or MIT license. These are compatible with the GPL and FSF is fine
>with it.

Er, yes.  (Was there something I said that contradicted that?)

-K

>On 4/17/2013 10:04 AM, Karl Fogel wrote:
>> Robin Winning  writes:
>>> I am a contracts manager at software company, and in addition to doing
>>> contracts, I now find myself reviewing the licenses associated with
>>> the open source packages my company has acquired. I have become quite
>>> familiar with the GPL/LGPL/AGPL suite of licenses, as well as the
>>> other, permissive licenses: MIT, BSD, etc. Here's my question: quite
>>> frequently, the programmer makes the Free Software Foundation the
>>> copyright holder, but then attaches a license that is not in the GPL
>>> family. Is that a valid combination?
>> It's technically valid, in that the FSF (as a non-profit corporation)
>> can hold copyrightable assets under any licenses it wants.
>>
>> But it's likely usually a mistake, in the sense that the FSF probably
>> has no idea these works are being "donated" to it under these non-GPL
>> licenses, and because there is usually no need to make the FSF the
>> copyright holder -- except in certain cases where the FSF is actually
>> involved in the development or maintenance of the software, in which
>> case they would have discussed this with the programmer and, in most
>> cases, the FSF would have insisted on one of the GPL family of licenses
>> (though there are some exceptions to that).
>>
>> I'm not a lawyer and this is not legal advice.  There are plenty of
>> people who can give you real legal advice if you need; we may be able to
>> help you find those people.
>>
>>> In the case of "ncurses," I was able to research and determine that
>>> when they assigned their copyright to the Free Software Foundation,
>>> the FSF gave ncurses a special carve-out allowing them to use a
>>> permissive license. However, all the rest of the open source packages
>>> I have come across that assert "Copyright Free Software Foundation"
>>> but are accompanied by non-GPL licenses do not seem to have that sort
>>> of special arrangement.
>> Nice researching (re ncurses)!
>>
>>> Maybe I'm overthinking this, but it seems contradictory to me, and I
>>> don't know how to characterize the license in terms of permissive or
>>> restrictive.
>> It's not contradictory, but it's probably often a mistake by a
>> programmer who thinks that putting a license's terms on some software
>> implies that the software's copyright must now be held by whatever
>> entity wrote that license -- which, of course, is not the case and not
>> the norm.
>>
>> -Karl
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Re: [License-discuss] Copyright Free Software Foundation, but license not GPL

[Bruce Perens]

Karl, Robin means that the work is dedicated to FSF and placed under a 
BSD or MIT license. These are compatible with the GPL and FSF is fine 
with it.


Thanks

Bruce

On 4/17/2013 10:04 AM, Karl Fogel wrote:

Robin Winning  writes:

I am a contracts manager at software company, and in addition to doing
contracts, I now find myself reviewing the licenses associated with
the open source packages my company has acquired. I have become quite
familiar with the GPL/LGPL/AGPL suite of licenses, as well as the
other, permissive licenses: MIT, BSD, etc. Here's my question: quite
frequently, the programmer makes the Free Software Foundation the
copyright holder, but then attaches a license that is not in the GPL
family. Is that a valid combination?

It's technically valid, in that the FSF (as a non-profit corporation)
can hold copyrightable assets under any licenses it wants.

But it's likely usually a mistake, in the sense that the FSF probably
has no idea these works are being "donated" to it under these non-GPL
licenses, and because there is usually no need to make the FSF the
copyright holder -- except in certain cases where the FSF is actually
involved in the development or maintenance of the software, in which
case they would have discussed this with the programmer and, in most
cases, the FSF would have insisted on one of the GPL family of licenses
(though there are some exceptions to that).

I'm not a lawyer and this is not legal advice.  There are plenty of
people who can give you real legal advice if you need; we may be able to
help you find those people.


In the case of "ncurses," I was able to research and determine that
when they assigned their copyright to the Free Software Foundation,
the FSF gave ncurses a special carve-out allowing them to use a
permissive license. However, all the rest of the open source packages
I have come across that assert "Copyright Free Software Foundation"
but are accompanied by non-GPL licenses do not seem to have that sort
of special arrangement.

Nice researching (re ncurses)!


Maybe I'm overthinking this, but it seems contradictory to me, and I
don't know how to characterize the license in terms of permissive or
restrictive.

It's not contradictory, but it's probably often a mistake by a
programmer who thinks that putting a license's terms on some software
implies that the software's copyright must now be held by whatever
entity wrote that license -- which, of course, is not the case and not
the norm.

-Karl
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Re: [License-discuss] Copyright Free Software Foundation, but license not GPL

[Chuck Swiger]

On Apr 5, 2013, at 3:14 PM, Robin Winning wrote:
> I am a contracts manager at software company, and in addition to doing 
> contracts, I now find myself reviewing the licenses associated with the open 
> source packages my company has acquired. I have become quite familiar with 
> the GPL/LGPL/AGPL suite of licenses, as well as the other, permissive 
> licenses: MIT, BSD, etc. Here's my question: quite frequently, the programmer 
> makes the Free Software Foundation the copyright holder, but then attaches a 
> license that is not in the GPL family. Is that a valid combination?

Certainly.  There was a time (before SourceForge, CollabNet, github, Perl's 
CPAN, etc) when the FSF used to host BSD/MIT-ish licensed software like 
ncurses, less, gzip, and others.

Many of them eventually were dual-licensed under the GPL.

> In the case of "ncurses," I was able to research and determine that when they 
> assigned their copyright to the Free Software Foundation, the FSF gave 
> ncurses a special carve-out allowing them to use a permissive license. 
> However, all the rest of the open source packages I have come across that 
> assert "Copyright Free Software Foundation" but are accompanied by non-GPL 
> licenses do not seem to have that sort of special arrangement.

>From "man less":

   less  is  part  of  the GNU project and is free software.  You can 
redistribute it and/or modify it under the terms of either (1) the GNU
   General Public License as published by the Free Software Foundation; or 
(2) the Less License.  See the file README in the less  distribu-
   tion  for more details regarding redistribution.  You should have 
received a copy of the GNU General Public License along with the source
   for less; see the file COPYING.  If not, write to the Free Software 
Foundation, 59 Temple Place, Suite 330, Boston, MA  02111-1307,  USA.
   You should also have received a copy of the Less License; see the file 
LICENSE.

> Maybe I'm overthinking this, but it seems contradictory to me, and I don't 
> know how to characterize the license in terms of permissive or restrictive. 

Something which is dual-licensed under the GPL and a permissive BSD/MIT-style 
license is permissive.

Regards,
-- 
-Chuck

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Re: [License-discuss] Copyright Free Software Foundation, but license not GPL

[John Sullivan]

Robin Winning  writes:

> Hi All,
> I am a contracts manager at software company, and in addition to doing
> contracts, I now find myself reviewing the licenses associated with
> the open source packages my company has acquired. I have become quite
> familiar with the GPL/LGPL/AGPL suite of licenses, as well as the
> other, permissive licenses: MIT, BSD, etc. Here's my question: quite
> frequently, the programmer makes the Free Software Foundation the
> copyright holder, but then attaches a license that is not in the GPL
> family. Is that a valid combination?
>

It can be, yes. Some packages whose copyrights are held by the FSF are
distributed under other licenses. There is actually no intrinsic
connection between the GPL and the FSF holding the copyright or vice
versa.

However, it is not valid for someone to just say "Copyright Free
Software Foundation" on their code without actually having a
conversation with us about it (although we appreciate the sentiment). :)
We don't actually hold the copyright unless the author has signed an
agreement with us transferring it.

If you write to ass...@gnu.org with more information about the code, we
can confirm whether we actually hold the copyright. 

-john

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Re: [License-discuss] Copyright Free Software Foundation, but license not GPL

[Karl Fogel]

Robin Winning  writes:
>I am a contracts manager at software company, and in addition to doing
>contracts, I now find myself reviewing the licenses associated with
>the open source packages my company has acquired. I have become quite
>familiar with the GPL/LGPL/AGPL suite of licenses, as well as the
>other, permissive licenses: MIT, BSD, etc. Here's my question: quite
>frequently, the programmer makes the Free Software Foundation the
>copyright holder, but then attaches a license that is not in the GPL
>family. Is that a valid combination?

It's technically valid, in that the FSF (as a non-profit corporation)
can hold copyrightable assets under any licenses it wants.

But it's likely usually a mistake, in the sense that the FSF probably
has no idea these works are being "donated" to it under these non-GPL
licenses, and because there is usually no need to make the FSF the
copyright holder -- except in certain cases where the FSF is actually
involved in the development or maintenance of the software, in which
case they would have discussed this with the programmer and, in most
cases, the FSF would have insisted on one of the GPL family of licenses
(though there are some exceptions to that).

I'm not a lawyer and this is not legal advice.  There are plenty of
people who can give you real legal advice if you need; we may be able to
help you find those people.

>In the case of "ncurses," I was able to research and determine that
>when they assigned their copyright to the Free Software Foundation,
>the FSF gave ncurses a special carve-out allowing them to use a
>permissive license. However, all the rest of the open source packages
>I have come across that assert "Copyright Free Software Foundation"
>but are accompanied by non-GPL licenses do not seem to have that sort
>of special arrangement.

Nice researching (re ncurses)!

>Maybe I'm overthinking this, but it seems contradictory to me, and I
>don't know how to characterize the license in terms of permissive or
>restrictive. 

It's not contradictory, but it's probably often a mistake by a
programmer who thinks that putting a license's terms on some software
implies that the software's copyright must now be held by whatever
entity wrote that license -- which, of course, is not the case and not
the norm.

-Karl
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[License-discuss] Copyright Free Software Foundation, but license not GPL

[Robin Winning]

Hi All,
I am a contracts manager at software company, and in addition to doing 
contracts, I now find myself reviewing the licenses associated with the open 
source packages my company has acquired. I have become quite familiar with the 
GPL/LGPL/AGPL suite of licenses, as well as the other, permissive licenses: 
MIT, BSD, etc. Here's my question: quite frequently, the programmer makes the 
Free Software Foundation the copyright holder, but then attaches a license that 
is not in the GPL family. Is that a valid combination?

In the case of "ncurses," I was able to research and determine that when they 
assigned their copyright to the Free Software Foundation, the FSF gave ncurses 
a special carve-out allowing them to use a permissive license. However, all the 
rest of the open source packages I have come across that assert "Copyright Free 
Software Foundation" but are accompanied by non-GPL licenses do not seem to 
have that sort of special arrangement.

Maybe I'm overthinking this, but it seems contradictory to me, and I don't know 
how to characterize the license in terms of permissive or restrictive. 

Thank you,
Robin






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Re: The myth of copyright license permissions

[John Cowan]

dlw scripsit:

> The Supreme Court has never revisited this "privity of contract"
> principle nor has Congress ever denied it. Congress did embrace
> this constraint in section 109(a) of the modern day law. No
> Federal appellate court has ever contradicted this restriction on
> the copyright monopoly.
> 
> It seems that Richard Stallman has been very successful in
> creating an a modern urban legend.

"Parturient montes, nascetur ridiculus mus."  So much scholarship,
so little relevance.  And like that.

Sharing software with others means *copying* it.  Yes, the first sale
doctrine lets you transfer your copy of a program to someone else,
leaving you with no trace of it at all (remove it from your system,
transfer ownership of the installation media), provided the program was
really sold to you in the first place (which Microsoft and all other
proprietary software companies deny).  It doesn't let you share a copy
with your friend, or make a derivative work.  If you do those things
with Microsoft software, they come after you.  If you do it with GPLed
software, you play by the GPL or they come after you.  Believe it.

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beating of drums, and thin, monotonous whine of blasphemous flutes from
inconceivable, unlighted chambers beyond Time; the detestable pounding
and piping whereunto dance slowly, awkwardly, and absurdly the gigantic
tenebrous ultimate gods -- the blind, voiceless, mindless gargoyles whose soul
is Nyarlathotep. (Lovecraft) John Cowan|[EMAIL PROTECTED]|ccil.org/~cowan
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The myth of copyright license permissions

[dlw]

Why won't the myth of the "non-contractual" copyright license ever
die? It's like a cat with 999 lives.
The Supreme Court in 1908 interpreted the scope of the copyright
monopoly granted by Congress. The decision was BOBBS-MERRILL CO.
v. STRAUS, 210 U.S. 339 (1908).
One observation of the Court concerned copyright and patent
differences
"We may say in passing, disclaiming any intention to indicate our
views as to what would be the rights of parties in circumstances
similar to the present case under the patent laws, that there are
differences between the patent and copyright statutes in the
extent of the protection granted by them. This was recognized by
Judge Lurton, who wrote a leading case on the subject in the
Federal courts (Button Fastener Case, supra), for he said in the
subsequent case of John D. Park & Sons Co. v. Hartman, 12
L.R.A.(N.S.) 135, 82 C. C. A. 158, 153 Fed. 24: [210 U.S. 339,
346]'There are such wide differences between the right of
multiplying and vending copies of a production protected by the
copyright statute and the rights secured to an inventor under the
patent statutes, that the cases which relate to the one subject
are not altogether controlling as to the other.'"
The relevant statute in 1908 concerning "multiplying and vending
copies of a production protected by the copyright statute" was:
'Sec. 4952. Any citizen of the United States or resident therein,
who shall be the author, inventor, designer, or proprietor of any
book, map, chart, dramatic or musical composition, engraving, cut,
print, or photograph or negative thereof, or of a painting,
drawing, chromo, statute, statuary, and of models or designs
intended to be perfected as works of the fine arts, and the
executors, administrators, or assigns of any such person, shall,
upon complying with the provisions of this chapter, have the sole
liberty of printing, reprinting, publishing, completing, copying,
executing, finishing, and vending the same.' U. S. Comp. Stat.
1901, p. 3406.
Today's counterpart is section 106 of the Copyright Act.
The Court noted that the scope of the ruling extended beyond
merely "vending" and was decided in light of its main purpose
--- that of "multiplying copies":
"The precise question, therefore, in this case is, Does the sole
right to vend (named in 4952) secure to the ownerof the copyright
the right, after a sale of the book to a purchaser, to restrict
future sales of the book at retail, to  the right to sell it at a
certain price per copy, because of a notice in the book that a
sale at a different price will be treated as an infringement,
which notice has been brought home to one undertaking to sell for
less than the  named sum? We do not think the statute can be given
such a construction, and it is to be remembered that this is
purely a question of statutory construction. There is no claim in
this case of contract limitation, nor license  agreement
controlling the subsequent sales of the book. In our view the
copyright statutes, while protecting the owner of the copyright in
his right to multiply and sell his production, do not create the
right to impose, by notice, such as is disclosed in this case, a
limitation at which the  book shall be sold at retail by future
purchasers, with whom there is no privity of contract. This
conclusion is reached in view of the language of the statute, read
in the light of its main purpose to secure the right of
multiplying copies of the work,-a right which is the special
creation of the statute. True, the statute also secures, to
make this right of multiplication effectual, the sole right to
vend copies of the book, the production of the author's thought
and conception."
It is crystal clear from the Supreme Court's holding that "the
right of multiplying copies of the work,-a right which is the
special creation of the statute" is constrained by the requirement
of "privity of contract".
The Supreme Court has never revisited this "privity of contract"
principle nor has Congress ever denied it. Congress did embrace
this constraint in section 109(a) of the modern day law. No
Federal appellate court has ever contradicted this restriction on
the copyright monopoly.
It seems that Richard Stallman has been very successful in
creating an a modern urban legend.


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Re: The Copyright Act preempts the GPL

[Chloe Hoffman]

Not sure if you saw this language in the text:

The aspects of a derivative work added by the derivative author are that
author's property, but the element drawn from the pre-existing work remains
on grant from the owner of the pre-existing work. See Russell v. Price, 612
F.2d 1123, 1128 (CA9 1979) (reaffirming "well-established doctrine that a
derivative copyright protects only the new material contained in the
derivative work, not the matter derived from the underlying work"), cert.
denied, 446 U.S. 952 (1980); see also Harper & Row, Publishers, Inc. v.
Nation Enterprises, 471 U.S. 539, 547 (1985) ("The copyright is limited to
those aspects of the work - termed `expression' - that display the stamp of
the author's originality"). So long as the pre-existing work remains out of
the public domain, its use is infringing if one who employs the work does
not have a valid license or assignment for use of the pre-existing work.
Russell v. Price, supra, at 1128 ("[E]stablished doctrine prevents
unauthorized copying or other infringing use of the underlying work or any
part of that work contained in the derivative product so long as the
underlying work itself remains copyrighted"). It is irrelevant whether the
pre-existing work is inseparably intertwined with the derivative work. See
Gilliam v. American Broadcasting Cos., 538 F.2d 14, 20 (CA2 1976)
("[C]opyright in the underlying script survives intact despite the
incorporation of that work into a derivative work"). Indeed, the plain
language of 7 supports the view that the full force of the copyright in the
pre-existing work is preserved despite incorporation into the derivative
work. See 17 U.S.C. 7 (1976 ed.) (publication of the derivative work "shall
not affect the force or validity of [495 U.S. 207, 224]   any subsisting
copyright upon the matter employed"); see also 17 U.S.C. 3 (1976 ed.)
(copyright protection of a work extends to "all matter therein in which
copyright is already subsisting, but without extending the duration or scope
of such copyright"). This well-settled rule also was made explicit in the
1976 Act:

  "The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the
preexisting material employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such work is independent
of, and does not affect or enlarge the scope, duration, ownership, or
subsistence of, any copyright protection in the pre-existing material." 17
U.S.C. 103(b).
and

The plain language of the termination provision itself indicates that
Congress assumed that the owner of the pre-existing work possessed the right
to sue for infringement even after incorporation of the pre-existing work in
the derivative work.

  "A derivative work prepared under authority of the grant before its
termination may continue to be utilized under the terms of the grant after
its termination, but this privilege does not extend to the preparation after
the termination of other derivative works based upon the copyrighted work
covered by the terminated grant." 304(c)(6)(A) (emphasis added).

Congress would not have stated explicitly in 304(c)(6)(A) that, at the end
of the renewal term, the owner of the rights in the pre-existing work may
not terminate use rights in existing derivative works unless Congress had
assumed that [495 U.S. 207, 227]   the owner continued to hold the right to
sue for infringement even after incorporation of the pre-existing work into
the derivative work. Cf. Mills Music, Inc. v. Snyder, 469 U.S. 153, 164
(1985) ( 304(c)(6)(A) "carves out an exception from the reversion of rights
that takes place when an author exercises his right to termination").

and

In this case, the grant of rights in the pre-existing work lapsed and,
therefore, the derivative work owners' rights to [495 U.S. 207, 236]   use
those portions of the pre-existing work incorporated into the derivative
work expired. Thus, continued use would be infringing; whether the
derivative work may continue to be published is a matter of remedy, an issue
which is not before us. To say otherwise is to say that the derivative work
nullifies the "force" of the copyright in the "matter employed."

- Original Message - 
From: "John Cowan" <[EMAIL PROTECTED]>
To: "Chloe Hoffman" <[EMAIL PROTECTED]>
Cc: <[EMAIL PROTECTED]>
Sent: Tuesday, February 17, 2004 12:16 AM
Subject: Re: The Copyright Act preempts the GPL


> Chloe Hoffman scripsit:
> > You may want to take a look at Stewart v. Abend.
> >
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=495&invol=207
>
> An interesting case, but not really apropos, because the pre-1976
> copyright renewal scheme, like the corresponding termi

Re: The Copyright Act preempts the GPL

[John Cowan]

Chloe Hoffman scripsit:
> You may want to take a look at Stewart v. Abend.
> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=495&invol=207

An interesting case, but not really apropos, because the pre-1976
copyright renewal scheme, like the corresponding termination provisions
in post-1976 law, are specially intended to arrange for the rights to
be recaptured by the author or his heirs.

> This is not legal advice, etc.

+1

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Re: Copyright Act preempts the wave theory of light

[Russell Nelson]

BSD Protector writes:
 > With all due respect, this mailing list is called:
 > "license-discuss".
 > 
 > 1. GPL is a license.
 > 2. It is being discussed.

3. It is not a license under consideration for approval by OSI.

Therefore ... it is off-topic for this mailing list.

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Re: Copyright Act preempts the wave theory of light

[BSD Protector]

--- Ian Lance Taylor <[EMAIL PROTECTED]> wrote:

> This is a mailing list for discussing licenses which
> have been submitted to OSI for approval.

OK, I promise not to post on this topic again.

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Re: Copyright Act preempts the wave theory of light

[Ian Lance Taylor]

BSD Protector <[EMAIL PROTECTED]> writes:

> --- Daniel Carrera wrote:
> 
> > Can we stop these posts already?
> 
> With all due respect, this mailing list is called:
> "license-discuss".

However, that doesn't mean that it is a mailing list for discussing
all licenses, or the theory of licensing.

This is a mailing list for discussing licenses which have been
submitted to OSI for approval.

Some of the recent posts make me feel like I'm reading one of those
books which explain why the U.S. government can only legally collect
income tax from residents of Puerto Rico and Guam, or whatever the
current claims are.

Ian
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Re: Copyright Act preempts the wave theory of light

[Daniel Carrera]

On Thu, Feb 12, 2004 at 06:45:49PM -0800, BSD Protector wrote:

> > Can we stop these posts already?
> 
> With all due respect, this mailing list is called:
> "license-discuss".
> 
> 1. GPL is a license.
> 2. It is being discussed.

As someone mentioned earlier, this is list is about not about discussing 
Copyright Law.  It is about discussing whether a license fits the open 
source definition or not.


Cheers,
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Re: Copyright Act preempts the wave theory of light

[BSD Protector]

--- Daniel Carrera wrote:

> Can we stop these posts already?

With all due respect, this mailing list is called:
"license-discuss".

1. GPL is a license.
2. It is being discussed.

I do not see what the problem here is. Also, note that
implications of that discussion might affect other
licenses, namely Open Software License 2.0. See 1(c)
of the OSL v. 2.0:

-
c) to distribute copies of the Original Work and
Derivative Works to the public, with the proviso that
copies of Original Work or Derivative Works that You
distribute shall be licensed under the Open Software
License;
-

Just as "viral" as the GPL.

I would further claim that every single license that
requires conditions to be repeated "ad infinitum"
(i.e. self perpetuating conditions) is in fact viral,
at least partially. This would then mean, in terms of
contract law, "universal privity", which is a problem
in itself.

So, the intention of the discussion is to determine
this:

1. Does Copyright Act give explicit rights to license
without requiring additional legal machinery?

2. Does Copyright Act give explicit rights to put
conditions on the above licensing?

3. Does Copyright Act require, demand or imply a
contract between owners of copyright for a copyrighted
work to be used in a manner defined in section 106? Or
does it recongnize the multiple unilateral permission
as sufficient to do so?

4. Can Copyright Act provide standalone protection for
copyrighted works or does it require other legal
machinery to do so?

By answering the above questions we'll be closer to
determining if there is such a thing as "bare license"
or "copyright license" and if GPL, OSL etc. are in
fact examples of such licenses. I see this as very
important, given the amount of code that's released daily.

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Re: Copyright Act preempts the wave theory of light

[Nathan Kelley]

To OSI License Discussion subscribers,

From: Daniel Carrera <[EMAIL PROTECTED]>,

Can we stop these posts already?
About 280KB worth of e-mail has now be exchanged in discussing this 
topic, including the 'amusing' spin-off discussions.

It's certainly an important topic, if for no other reason than it has 
ramifications for other licenses beyond the GPL and, indeed, for the 
nature of Open Source. It also of course affects a large number of 
products and projects, although that is beyond the scope of the 
discussions here.

But at this stage, it might be worthwhile for all parties to 
acknowledge widely divergent opinions exist regarding the legality of 
the GPL (and have for a long time) and that the best way of 
'establishing' its' legal basis is still to wait and see how it fares 
once tested before a court.

That may happen during the SCOX vs. IBM litigation.

Subject: Copyright Act preempts the wave theory of light

A significant number of electrons were, however, severely 
inconvenienced.
Energy is your friend =)

Cheers, Nathan.

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Copyright Act preempts the wave theory of light

[Daniel Carrera]

Can we stop these posts already?


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RE: Copyright Act preempts itself

[BSD Protector]

Thanks.

I wasn't actually expecting an answer. I was just
thinking outloud after I've read a lot of the "such
and such preempts the GPL" stuff.

What I've concluded after reading the Copyright Act is
that:

1. The Act explicitly establishes the concept of
licensing, completely independently of any contracts.
In other words, the notion that "every license is a
contract, be it bilateral or unilateral" is in fact
completely wrong. To authorize means to license - the
Act gives that power, nothing else is required.

2. The Act recognises the concept of licesensing under
conditions. It is therefore not necessary for any 
contract to exist in order to enforce those
conditions. The license is either given if conditions
are met or it is not if they are not met.

3. The Act recognises the concept of multiple
permissions given by owners of copyright without any
agreement between those owners. In other words, it is
not necessary (but it is also not forbidden) for the
owners to form a contract in order to authorize
anything. What is needed is that the recieving party
has all necessary permissions and that the conditions
are met.

--- "Lawrence E. Rosen" <[EMAIL PROTECTED]> wrote:
> Read my book when it is published in the next few
> months. In the meantime,
> please don't expect any attorney to answer your
> broad questions in an email
> thread. (You may get lucky. There are some attorneys
> on here with time on
> their hands.)
> 
> /Larry Rosen

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Copyright Act preempts itself

[BSD Protector]

Now, I promise that this is not a troll. Really, I do.
I was simply reading the Copyright Act again and found
this in section 106:

-
Subject to sections 107 through 122, the owner of
copyright under this title has the exclusive rights to
do and to *authorize* any of the following:
-

Emphasis is mine, of course.

Now, to authorize, what exactly does that mean
(http://dictionary.reference.com/search?q=authorize):

-
Synonyms: authorize, accredit, commission, empower,
license

These verbs mean to give someone the authority to
act: authorized her partner to negotiate on her
behalf; a representative who was accredited by his
government; commissioned the real-estate agent to
purchase the house; was empowered to make decisions
during the president's absence; a pharmacist licensed
to practice in two states.
-

So, I take this to mean that "authorize" means
"license". So, now we know that the owner of copyright
has the explicit authority to license, as given by the
Act.

The next important questions are:

1. Can an author impose any conditions to this
authorization or licensing?

2. Can two owners of copyright give permission
independently or do they have to create a contract in
order to do so?

Section 114, which relates to "Scope of exclusive
rights in sound recordings", contains this text:

-
(2) For licenses granted under section 106(6), other
than statutory licenses, such as for performances by
interactive services or performances that exceed the
sound recording performance complement — 

(A) copyright owners of sound recordings affected by
this section may designate common agents to act on
their behalf to grant licenses and receive and remit
royalty payments: Provided, That each copyright owner
shall establish the royalty rates and material license
terms and conditions unilaterally, that is, not in
agreement, combination, or concert with other
copyright owners of sound recordings; and
-

First, the obvious thing here is that this Act
explicity recognises the concept of "licenses granted
under section 106(6)". I don't think that if licensing
applies to 106(6) it wouldn't apply to the whole of
106. So, it is pretty safe to assume that a concept of
licensing is something that does in fact apply here.
After all, "auhtorize" == "license".

Second, note the wording of establishing conditions
unilaterally and not in agreement with other copyright
owners. Similar situation exists when it comes to
derivative works - there are multiple owners. One
would tend to conclude here that this Act in fact
recogizes a possiblity of multiple unilateral
"licenses" or "authorizations" without an agreement
between those involved (i.e. without a binding legal
form, contract).

Third, note the wording of "conditions". This is
absolutely recognised by this Act. It is also used in
combination with "unilaterally" quite explicitly.

So, why did I title this e-mail "Copyright Act
preempts itself"?

First, "copyright license" is an "authorization" as
specified by this Act and not a contract of any kind.
This Act does not require any other laws for this
authorization or licensing to be enforced.

Second, because if the above "conditional licensing"
recongition weren't the case, one would absolutely
require a contract to enforce anything that has
"conditions". Conditions would assume some sort of a
promise, so this would then fall under the contracts
law. This would then mean that in order to "authorize
with conditions", as explicitly recognised here in the
Act, one would need to employ a contract and therefore
fall afoul of section 301 which deals with preemption
when it comes to exclusive rights as set forward in
section 106.

Third, it would seem clear that it is explicitly
allowed by the Act that multiple permissions of the
owners of copyright be employed together and without
an agreement between them, in order to achieve a
complete permission to do something with the work.

So, the logical conclusion would be that Copyright Act
preempts itself if it requires some other state law in
order for the exclusive rights, it (Copyright Act)
exclusively governs, to be enforced. This if, of
course not possible, so the only interpretation
available is that "authorization with conditions" or
"licensing under conditions" is explicitly allowed by
the Act.

Also, the other concusion is that "multiple
independent permissions of copyright holders" are
sufficient to get authorization (i.e. license) to do
something with the copyrighted work which would be
otherwise prohibited by the Act. No contract between

Re: The Copyright Act preempts the BSD license

[BSD Protector]

--- Ben Reser <[EMAIL PROTECTED]> wrote:

> Given the email address and the similarity to the
language used in the debate about the GPL and the
Copyright Act on debian-legal I'm tempted to ignore
this as a troll.

Indeed you are correct. It is a troll. But more
correctly, it is a parody. It goes to show that when
one is really bent on proving something, one will
succeed, no matter how much nonsense is used in the
process of it.

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The Copyright Act preempts Microsoft's EULA

[Daniel Carrera]

Hey, this is fun!

Now seriously, how silly can these discussions get?

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Math Dept. UMD | inconvenienced.

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Re: The Copyright Act preempts the BSD license

[Ben Reser]

Given the email address and the similarity to the language used in the
debate about the GPL and the Copyright Act on debian-legal I'm tempted
to ignore this as a troll.  However, I think this should be responded to
so as to avoid confusion.

Also to some extent it seems like a ruse to get someone to say something
that would be contradictory to the argument that the GPL isn't preempted
by the copyright act.

Further, I don't think this discussion is particularly appropriate for
this list.  As the charter of the list is to discuss licenses for
approval by OSI as meeting the OSD.  Not determining if the licenses are
preempted by the Copyright Act.

On Wed, Feb 11, 2004 at 01:01:24PM -0800, BSD Protector wrote:
> I have a great concern related to the validity of the
> BSD license. I think this license is preempted by the
> copyright law itself.
> 
> When the license
> (http://www.freebsd.org/copyright/license.html) says:
> 
> "Redistribution and use in source and binary forms,
> with or without modification, are permitted provided
> that the following conditions are met:"

> it is quite clear that some kind of conditions are
> imposed on the person that wants to distribute this
> work with (or without) modifications (i.e. derivative
> work). This would mean that the original author
> conditions contributing author's exclusive rights.
> This is not possible by definition.

No they don't.  They don't say a darn thing about the contributing
authors rights.  That's a matter left entirely up to copyright law.

Let's say you take and modify some BSD licensed piece of software to add
some functionality.  Your additions when combined with the original
would be a derivative work and must carry the appropriate license
terms and notices with it regarding the copyright of the original work.

However, you can take that code that you wrote and put it in some
non-BSD licensed work then that *MAY* not be considered a derivative
work and you wouldn't have to carry those terms or notices.  The
interpretation of what constitutes a derivative work varies from circuit
to circuit, so it's difficult to give a definitive answer when you would
or wouldn't have to include the terms and notice.

This does not constitute a condition upon your exclusive rights that
isn't embodied in copyright law already anyway as I'll show below.

> In order for the derivative to be distributed at all,
> the original author and the contributing author have
> to form a contract, a binding legal form, to agree on
> the distribution of the derivative work. This makes
> this license quite clearly a contract.

Nope the BSD license is a bare license.  There's no contract.  It's
simply the permission to do something.  While at the same time
specifying that you aren't given permission to do some other things
and as a consequence are required to do certain things.

> But now comes the really scary part. Although the
> contributing author might choose a different license
> for the derivative work, he must obey the original,
> BSD license, in all respects. The license demand
> following conditions to be met:
> 
> ---
> 1.  Redistributions of source code must retain the
> above copyright notice, this list of conditions and
> the following disclaimer.
>
> 2. Redistributions in binary form must reproduce the
> above copyright notice, this list of conditions and
> the following disclaimer in the documentation and/or
> other materials provided with the distribution.
>

This is already required by Section 1202.  You can look at this
requirement as the copyright owner saying that while you are allowed to
redistribute the modified work you are not being given permission to
remove the copyright notice and terms of use.  
 
> 3. All advertising materials mentioning features or
> use of this software must display the following
> acknowledgement:
> 
>   This product includes software developed by
> the University of California, Berkeley and its
> contributors. 

This clause was rescinded by the University of California, Berkeley and
is no longer part of the license. 

See
ftp://ftp.cs.berkeley.edu/pub/4bsd/README.Impt.License.Change


> 4. Neither the name of the University nor the names of
> its contributors may be used to endorse or promote
> products derived from this software without specific
> prior written permission.

This is already the law anyway.  So again this can be viewed as simply
stating that you aren't being given that permission.  But this isn't a
copyright issue.  So really has nothing to do with your analysis.

> If the new license the contributing author has chosen
> for the redistribution doesn't allow the recipient to
> distribute, nothing happens at all (copyright is

The Copyright Act preempts the BSD license

[BSD Protector]

I have a great concern related to the validity of the
BSD license. I think this license is preempted by the
copyright law itself.

When the license
(http://www.freebsd.org/copyright/license.html) says:

"Redistribution and use in source and binary forms,
with or without modification, are permitted provided
that the following conditions are met:"

it is quite clear that some kind of conditions are
imposed on the person that wants to distribute this
work with (or without) modifications (i.e. derivative
work). This would mean that the original author
conditions contributing author's exclusive rights.
This is not possible by definition.

In order for the derivative to be distributed at all,
the original author and the contributing author have
to form a contract, a binding legal form, to agree on
the distribution of the derivative work. This makes
this license quite clearly a contract.

But now comes the really scary part. Although the
contributing author might choose a different license
for the derivative work, he must obey the original,
BSD license, in all respects. The license demand
following conditions to be met:

---
1.  Redistributions of source code must retain the
above copyright notice, this list of conditions and
the following disclaimer.

2. Redistributions in binary form must reproduce the
above copyright notice, this list of conditions and
the following disclaimer in the documentation and/or
other materials provided with the distribution.

3. All advertising materials mentioning features or
use of this software must display the following
acknowledgement:

  This product includes software developed by
the University of California, Berkeley and its
contributors. 

4. Neither the name of the University nor the names of
its contributors may be used to endorse or promote
products derived from this software without specific
prior written permission.
---

If the new license the contributing author has chosen
for the redistribution doesn't allow the recipient to
distribute, nothing happens at all (copyright is
simply not involved in any way). However, if the new
license permits the distribution of any kind (intact,
modified, source, binary or a combination), the
conditions listed above and the original copyright
notice have to appear  as demanded by the original
author.

The intended effect of this imposing the "use the same
conditions" requirement for *all* future successor
authors and not just the two original contracting
parties (authors in privity), is a "universal
privity", where original contractual terms are binding
on all third party strangers to the original author.
Since the BSD license terms are about copyright
matters and enforced under state laws, this is
forbidden by Congress in section 301.

I think we can safely say that BSD license is indeed
preempted by the Copyright Act.

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RE: The Copyright Act preempts the GPL

[Rod Dixon]

I would add that the question as to the level of originality (i.e.
creativity) required for a derivative work may not be the same as it is
for original works. The federal circuits are not in agreement on this. The
Second Cicuit, for example, requires a two-part test to be met: something
more than trivial and the originality must be reflective of the
contribution to the derivative work (in other words, not rely so much on
the preexisting work to show originality). The 9th Circuit where Larry is
uses a much less rigorous standard. Posner in the 7th circuit has opinined
that the more rigorous standard is better because it minimizes tranaction
costs, and so we see the 7th circuit using the more rigorous standard too.

-Rod
[EMAIL PROTECTED]

On Mon, 9 Feb 2004, Lawrence E. Rosen wrote:

> > Absent some additional "creative input" (e.g. selection of
> > color) from human being, I wouldn't consider it a derivative
> > work. I don't think that my screen saver which does pretty
> > funny transformations of screen pictures creates any
> > derivative works. (work-for-hire? slavery? oh-my-god! ;-) )
>
> As to creativity, "some" but "not much." The degree of creativity required
> to create a copyrightable work can be slight. I can imagine a situation
> where the mere decision to pass an original work through a specific
> translator technology creates a unique derivative work. Tie-dying an image
> on a t-shirt or creating a huge photographic blow-up for the side of a
> building can create a derivative work of the original image, even though
> those technologies doesn't involve huge amounts of creative input.
>
> More to your point, I think that you *cannot* create screen saver pictures
> from copyrighted images without license from the copyright owner. Those are
> derivative works. (I'll ignore issues of fair use and the difficulty of
> detection by the copyright police.) For example, I believe that if Microsoft
> or a Linux distributor included such a copyrighted image among their
> distributed Windows or Linux desktop screen savers, they'd be sued for
> copyright infringement, both for creating a derivative work and for
> distributing copies of that derivative work. A screen saver program is
> transformative enough to create derivative works.
>
> /Larry Rosen
>
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
>
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RE: The Copyright Act preempts the GPL

[Alexander Terekhov]

[... screen saver ...]

> More to your point, I think that you *cannot* create screen 
> saver pictures from copyrighted images without license from 
> the copyright owner. 

Agreed.

> Those are derivative works. 

Nope! They simply look like derivative works. ;-)

regards,
alexander.

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RE: The Copyright Act preempts the GPL

[Lawrence E. Rosen]

> Absent some additional "creative input" (e.g. selection of
> color) from human being, I wouldn't consider it a derivative 
> work. I don't think that my screen saver which does pretty 
> funny transformations of screen pictures creates any 
> derivative works. (work-for-hire? slavery? oh-my-god! ;-) )

As to creativity, "some" but "not much." The degree of creativity required
to create a copyrightable work can be slight. I can imagine a situation
where the mere decision to pass an original work through a specific
translator technology creates a unique derivative work. Tie-dying an image
on a t-shirt or creating a huge photographic blow-up for the side of a
building can create a derivative work of the original image, even though
those technologies doesn't involve huge amounts of creative input. 

More to your point, I think that you *cannot* create screen saver pictures
from copyrighted images without license from the copyright owner. Those are
derivative works. (I'll ignore issues of fair use and the difficulty of
detection by the copyright police.) For example, I believe that if Microsoft
or a Linux distributor included such a copyrighted image among their
distributed Windows or Linux desktop screen savers, they'd be sued for
copyright infringement, both for creating a derivative work and for
distributing copies of that derivative work. A screen saver program is
transformative enough to create derivative works.

/Larry Rosen

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RE: The Copyright Act preempts the GPL

[Lawrence E. Rosen]

> Also, someone cited patent law to show that only a negative right 
> exists...could you point me to the statute that contains the 
> cited text? 

35 U.S.C. § 154.

/Larry Rosen

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Re: The Copyright Act preempts the GPL

[Alexander Terekhov]

Arnoud Engelfriet wrote:
[...]
> Usually a compiler adds certain code to the executable it
> produces. For example, it may add a standard library or
> start-up code. As a result, the executable may very well
> qualify as a derivative work of this code.

Well,

http://www.digital-law-online.com/lpdi1.0/treatise27.html
(VI.D.4. Derivative Works and Compilations)

regards,
alexander.

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RE: The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

Unfortunately, I don't understand your comment.
"if the court agrees" - Agrees with what?

-- Scott

-Original Message-
From: Rod Dixon [mailto:[EMAIL PROTECTED] 
Sent: Monday, February 09, 2004 3:07 PM
To: Peterson, Scott K (HP Legal)
Cc: [EMAIL PROTECTED]
Subject: RE: The Copyright Act preempts the GPL


I must be missing something from your argument. It sounds like you are
describing copyright infringement. If so, the impediment can be removed
if the court agrees.

Rod


On Mon, 9 Feb 2004, Peterson, Scott K (HP Legal) wrote:

> If, when impeded in some way from undertaking one of the actions 
> exclusive to the copyright holder, a copyright holder could go to 
> court and use the copyright rights to overcome the impediment - that 
> would be an exercise of an affirmative right.
>
> As I am not aware of an example of a copyright holder exercising a 
> right in such a way, I continue to find it most helpful to think of 
> copyright as a negative right.
>
> -- Scott
>
> -Original Message-
> From: Tony Stanco [mailto:[EMAIL PROTECTED]
> Sent: Saturday, February 07, 2004 8:07 AM
> To: [EMAIL PROTECTED]; Peterson, Scott K (HP Legal); 'John Cowan'
> Cc: [EMAIL PROTECTED]
> Subject: Re: The Copyright Act preempts the GPL
>
>
> Scott,
>
> my understanding is the same as Larry's. Copyright provides exclusive 
> plenary rights to the owner. Patents provide the owner only with the 
> right to exclude others. I think the distinction was grounded in the 
> fact that it would be hard to conflict with someone else's copyright 
> in an original work (which usually stood alone), while complex, 
> interrelated processes/machines could easily involve multiple and 
> conflicting patents. As a result, patents are only negative rights and

> a person's exploitation of a particular patent in subject to the non 
> existence of conflicting patent(s).
>
> Best regards,
> Tony
>
>
> - Original Message -
> From: "Lawrence E. Rosen" <[EMAIL PROTECTED]>
> To: "'Peterson, Scott K (HP Legal)'" <[EMAIL PROTECTED]>; "'John

> Cowan'" <[EMAIL PROTECTED]>
> Cc: <[EMAIL PROTECTED]>
> Sent: Friday, February 06, 2004 8:39 PM
> Subject: RE: The Copyright Act preempts the GPL
>
>
> > Scott Peterson wrote:
> > > The rights provided under US copyright law are negative rights 
> > > (the right to exclude others), not positive rights (the right to 
> > > do something yourself).
> >
> > I don't think so, Scott. At least that's not how the copyright act
> > reads:
> >
> > "...The owner of copyright under this title has the
> > exclusive rights to do and to authorize any of the
> > following"
> >
> > The patent law is exactly the opposite.
> >
> >"...Every patent shall contain ... a grant to the patentee ...
> >to exclude others from using or selling"
> >
> > /Larry Rosen
> >
> > --
> > 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
>
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RE: The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

The US Patent and Trademark Office publishes a convenient compilation of
US patent laws. See the link labeled "consolidated laws on this page:
http://www.uspto.gov/web/offices/pac/mpep/

The US Copyright Office has a similar compilation of copyright laws
somewhere on its website:
http://www.copyright.gov/

The US House of Representatives provides convenient access to all of the
United States Code:
http://uscode.house.gov/

For patent laws see title 35 of the USC.
FOr copyright laws see title 17 of the USC.

-- Scott

-Original Message-
From: Arien Ferrell [mailto:[EMAIL PROTECTED] 
Sent: Monday, February 09, 2004 2:27 PM
Cc: [EMAIL PROTECTED]
Subject: Re: The Copyright Act preempts the GPL


The hypo proposed doesn't appear to clear up the core misunderstanding, 
as it introduces additional complication.

In that hypo, Scott claims that "Bob's right to make copies of the 
copyrighted work that he owns does not do him any good in trying 
overcome this impediment to his copying."  However, this is in the 
context of litigation - Alice is asserting that Bob does not have the 
right to copy, for whatever reason.  Because Bob's right is in question,

it does him no good.

Let's clean up the hypo a bit to get some clarity on Scott's position, 
that a copyright does not grant someone the right to make a copy. (I 
quickly researched the definition of 'affirmative right' and the courts 
provide no guidance (I'd be interested in someone else's results).  Only

a google search turned up the text which Scott posted earlier, about an 
affirmative right being a right delineated in the Bill of Rights.)

The Hypo: Bob wrote the book "Cryptography For Idiots", applying for and

receiving a copyright.  Bob wants to make and distribute copies.  No one

questions that Bob exclusively created and owns the copyright to CFI, 
and there is no one with rights in the work superior to those of Bob. 
What is the result when Bob copies?  If he can't do this as a matter of 
right, then someone apparently must exist with a cause of action against

Bob.  Who is this entity, and what is the cause of action?

Also, someone cited patent law to show that only a negative right 
exists...could you point me to the statute that contains the cited text?

  Thank you!!






Peterson, Scott K (HP Legal) wrote:
> Your hypothetical is directly on point:
> "Bob goes to court and proves that by a transfer of copyright 
> ownership, he is the copyright owner of _CfI_ and therefore has the 
> right under Section 106 (a) to reproduce the copyrighted work.  Surely

> this right is affirmative?"
> 
> That is precisely the right that I am pointing out that I have NOT 
> seen exercised and for which I am aware of no basis in US law. I do 
> not believe that a showing by Bob that he is the copyright owner would

> help him at all.
> 
> For example, Alice may have a copyright in a different book, and Alice

> may be asserting that the book that Bob's been distributing infringes 
> her rights in her book. Bob's acquisition of copyright ownership in 
> the book that he's distributing does not help him in Alice's case 
> against him. In other words, Bob's right to make copies of the 
> copyrighted work that he owns does not do him any good in trying 
> overcome this impediment to his copying.
> 
> If what you mean by "transfer" is that Bob shows that the copyright 
> ownership that Alice had asserted had really been transferred to Bob, 
> then, of course Bob is off the hook (court will no longer support 
> Alice's attempt to impede Bob's copying). But that result is because 
> of Alice's LOSS of the relevant copyright, not because of Bob's gain. 
> The same result would obtain even if Bob showed that Alice had 
> transferred the asserted copyright to someone else (not to Bob).
> 
> -- Scott
> 
> -Original Message-
> From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
> Sent: Monday, February 09, 2004 1:19 PM
> To: Peterson, Scott K (HP Legal)
> Cc: [EMAIL PROTECTED]
> Subject: Re: The Copyright Act preempts the GPL
> 
> 
> Peterson, Scott K (HP Legal) scripsit:
> 
> 
>>- rights that are enumerated in the Bill of Rights, such as relating
>>to free speech;
> 
> 
> Well, very good.  Let's take "free speech" and plug it into your 
> explication of affirmative rights:
> 
> 
>>>If, when impeded in some way from undertaking one of the actions 
>>>constituting free speech, a speaker could go to court and use the 
>>>free speech rights to overcome the impediment -
> 
> that
> 
>>>would be an exercise of an affirmative right.
> 
> 
> But you cannot go to court and overcome the impediment that prevents 
&g

RE: The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

In referring to negative and affirmative rights, I am not attempting to
invoke any magic words. I am merely offering a way of thinking about
copyright rights. I offer the characterization (copyright as a negative
right) because I find that it captures in a simple concept an analytical
device that goes a long way in helping predict what the US copyright law
does. 

I find thinking about copyright as both a positive right and a negative
right adds nothing to the analysis that more accurately predicts an
outcome under US copyright law than does thinking of copyright as a
purely negative right. The example in the message below is illustrative.
Why inject "a matter of right"? The concept adds nothing. If there is no
one with any copyright right by which they can prevent the person from
making a copy, then the person can make a copy. If there is someone with
such a copyright right, then the person cannot make a copy (whether they
have some copyright right of their own doesn't enter into the analysis).

There may be misunderstanding hidden in the phrase "rights in the work
superior to those of Bob". "Superior" may have been meant to imply that
someone's negative right might be balanced against another copyright
owner's positive right - a concept that I do not believe is applicable
to US copyright rights.

-- Scott

-Original Message-
From: Arien Ferrell [mailto:[EMAIL PROTECTED] 
Sent: Monday, February 09, 2004 2:27 PM
Cc: [EMAIL PROTECTED]
Subject: Re: The Copyright Act preempts the GPL


The hypo proposed doesn't appear to clear up the core misunderstanding, 
as it introduces additional complication.

In that hypo, Scott claims that "Bob's right to make copies of the 
copyrighted work that he owns does not do him any good in trying 
overcome this impediment to his copying."  However, this is in the 
context of litigation - Alice is asserting that Bob does not have the 
right to copy, for whatever reason.  Because Bob's right is in question,

it does him no good.

Let's clean up the hypo a bit to get some clarity on Scott's position, 
that a copyright does not grant someone the right to make a copy. (I 
quickly researched the definition of 'affirmative right' and the courts 
provide no guidance (I'd be interested in someone else's results).  Only

a google search turned up the text which Scott posted earlier, about an 
affirmative right being a right delineated in the Bill of Rights.)

The Hypo: Bob wrote the book "Cryptography For Idiots", applying for and

receiving a copyright.  Bob wants to make and distribute copies.  No one

questions that Bob exclusively created and owns the copyright to CFI, 
and there is no one with rights in the work superior to those of Bob. 
What is the result when Bob copies?  If he can't do this as a matter of 
right, then someone apparently must exist with a cause of action against

Bob.  Who is this entity, and what is the cause of action?

Also, someone cited patent law to show that only a negative right 
exists...could you point me to the statute that contains the cited text?

  Thank you!!






Peterson, Scott K (HP Legal) wrote:
> Your hypothetical is directly on point:
> "Bob goes to court and proves that by a transfer of copyright 
> ownership, he is the copyright owner of _CfI_ and therefore has the 
> right under Section 106 (a) to reproduce the copyrighted work.  Surely

> this right is affirmative?"
> 
> That is precisely the right that I am pointing out that I have NOT 
> seen exercised and for which I am aware of no basis in US law. I do 
> not believe that a showing by Bob that he is the copyright owner would

> help him at all.
> 
> For example, Alice may have a copyright in a different book, and Alice

> may be asserting that the book that Bob's been distributing infringes 
> her rights in her book. Bob's acquisition of copyright ownership in 
> the book that he's distributing does not help him in Alice's case 
> against him. In other words, Bob's right to make copies of the 
> copyrighted work that he owns does not do him any good in trying 
> overcome this impediment to his copying.
> 
> If what you mean by "transfer" is that Bob shows that the copyright 
> ownership that Alice had asserted had really been transferred to Bob, 
> then, of course Bob is off the hook (court will no longer support 
> Alice's attempt to impede Bob's copying). But that result is because 
> of Alice's LOSS of the relevant copyright, not because of Bob's gain. 
> The same result would obtain even if Bob showed that Alice had 
> transferred the asserted copyright to someone else (not to Bob).
> 
> -- Scott
> 
> -Original Message-
> From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
> Sent: Monday,

Re: The Copyright Act preempts the GPL

[Arnoud Engelfriet]

Ruth A. Kramer wrote:
> I may be off the mark, but to me, part of the implied "question"
> (perhaps in an earlier post?) is whether a compiled program is a
> derivative work of the compiler?
> 
> IANAL, but in my understanding it is not.  It is, however, a derived
> work of the source code, IIUC.

Usually a compiler adds certain code to the executable it
produces. For example, it may add a standard library or
start-up code. As a result, the executable may very well
qualify as a derivative work of this code.

If you use the gcc compiler, the 'libgcc' library is linked
against your code. This library is under the GPL with a
special exception:

  In addition to the permissions in the GNU General Public License,
  the Free Software Foundation gives you unlimited permission to link
  the compiled version of this file into combinations with other
  programs, and to distribute those combinations without any
  restriction coming from the use of this file.  (The General Public
  License restrictions do apply in other respects; for example, they
  cover modification of the file, and distribution when not linked
  into a combine executable.)

So in this particular case, the derivative work can be
distributed under other licenses than the GPL.

Arnoud

-- 
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

RE: The Copyright Act preempts the GPL

[Rod Dixon]

I must be missing something from your argument. It sounds like you are
describing copyright infringement. If so, the impediment can be removed if
the court agrees.

Rod


On Mon, 9 Feb 2004, Peterson, Scott K (HP Legal) wrote:

> If, when impeded in some way from undertaking one of the actions
> exclusive to the copyright holder, a copyright holder could go to court
> and use the copyright rights to overcome the impediment - that would be
> an exercise of an affirmative right.
>
> As I am not aware of an example of a copyright holder exercising a right
> in such a way, I continue to find it most helpful to think of copyright
> as a negative right.
>
> -- Scott
>
> -Original Message-
> From: Tony Stanco [mailto:[EMAIL PROTECTED]
> Sent: Saturday, February 07, 2004 8:07 AM
> To: [EMAIL PROTECTED]; Peterson, Scott K (HP Legal); 'John Cowan'
> Cc: [EMAIL PROTECTED]
> Subject: Re: The Copyright Act preempts the GPL
>
>
> Scott,
>
> my understanding is the same as Larry's. Copyright provides exclusive
> plenary rights to the owner. Patents provide the owner only with the
> right to exclude others. I think the distinction was grounded in the
> fact that it would be hard to conflict with someone else's copyright in
> an original work (which usually stood alone), while complex,
> interrelated processes/machines could easily involve multiple and
> conflicting patents. As a result, patents are only negative rights and a
> person's exploitation of a particular patent in subject to the non
> existence of conflicting patent(s).
>
> Best regards,
> Tony
>
>
> - Original Message -
> From: "Lawrence E. Rosen" <[EMAIL PROTECTED]>
> To: "'Peterson, Scott K (HP Legal)'" <[EMAIL PROTECTED]>; "'John
> Cowan'" <[EMAIL PROTECTED]>
> Cc: <[EMAIL PROTECTED]>
> Sent: Friday, February 06, 2004 8:39 PM
> Subject: RE: The Copyright Act preempts the GPL
>
>
> > Scott Peterson wrote:
> > > The rights provided under US copyright law are negative rights (the
> > > right to exclude others), not positive rights (the right to do
> > > something yourself).
> >
> > I don't think so, Scott. At least that's not how the copyright act
> > reads:
> >
> > "...The owner of copyright under this title has the
> > exclusive rights to do and to authorize any of the
> > following"
> >
> > The patent law is exactly the opposite.
> >
> >"...Every patent shall contain ... a grant to the patentee ...
> >to exclude others from using or selling"
> >
> > /Larry Rosen
> >
> > --
> > 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
>
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

Re: The Copyright Act preempts the GPL

[Rod Dixon]

Hmm...there is a part of your argument that is appealing in a conceptual
sense, and I think it would be correct to say that Copyright law has
allowed for distinctions between the compiled program and source code. For
example, one could refer to source code as a literal aspect of software
and at least parts of the compiled program's non-literal aspects (e.g.,
user interface). With the use of IDE's to compile (especially for
graphical user interfaces) programs, one could argue that the non-literal
aspect (certainly some of it) of a program is machine generated. Even so,
this may just be a modern path to the same point Copyright law already has
arrived at from litigation and allegations in the 1990's involving
Microsoft, Apple, Lotus, and a couple of others.

Rod
[EMAIL PROTECTED]


On Mon, 9 Feb 2004, Ruth A. Kramer wrote:

> > Alexander Terekhov scripsit:
> >
> > > To me, compilers (and tools like http://world.altavista.com)
> > > do nothing but "transliteration", not "translation" in the
> > > legal sense. I may be wrong, of course.
>
> I may be off the mark, but to me, part of the implied "question"
> (perhaps in an earlier post?) is whether a compiled program is a
> derivative work of the compiler?
>
> IANAL, but in my understanding it is not.  It is, however, a derived
> work of the source code, IIUC.
>
> Randy Kramer
> --
> 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 preempts the GPL

[Arien Ferrell]

The hypo proposed doesn't appear to clear up the core misunderstanding, 
as it introduces additional complication.

In that hypo, Scott claims that "Bob's right to make copies of the 
copyrighted work that he owns does not do him any good in trying 
overcome this impediment to his copying."  However, this is in the 
context of litigation - Alice is asserting that Bob does not have the 
right to copy, for whatever reason.  Because Bob's right is in question, 
it does him no good.

Let's clean up the hypo a bit to get some clarity on Scott's position, 
that a copyright does not grant someone the right to make a copy. (I 
quickly researched the definition of 'affirmative right' and the courts 
provide no guidance (I'd be interested in someone else's results).  Only 
a google search turned up the text which Scott posted earlier, about an 
affirmative right being a right delineated in the Bill of Rights.)

The Hypo: Bob wrote the book "Cryptography For Idiots", applying for and 
receiving a copyright.  Bob wants to make and distribute copies.  No one 
questions that Bob exclusively created and owns the copyright to CFI, 
and there is no one with rights in the work superior to those of Bob. 
What is the result when Bob copies?  If he can't do this as a matter of 
right, then someone apparently must exist with a cause of action against 
Bob.  Who is this entity, and what is the cause of action?

Also, someone cited patent law to show that only a negative right 
exists...could you point me to the statute that contains the cited text? 
 Thank you!!





Peterson, Scott K (HP Legal) wrote:
Your hypothetical is directly on point:
"Bob goes to court and proves that by a transfer of copyright ownership,
he is the copyright owner of _CfI_ and therefore has the right under
Section 106 (a) to reproduce the copyrighted work.  Surely this right is
affirmative?"
That is precisely the right that I am pointing out that I have NOT seen
exercised and for which I am aware of no basis in US law. I do not
believe that a showing by Bob that he is the copyright owner would help
him at all. 

For example, Alice may have a copyright in a different book, and Alice
may be asserting that the book that Bob's been distributing infringes
her rights in her book. Bob's acquisition of copyright ownership in the
book that he's distributing does not help him in Alice's case against
him. In other words, Bob's right to make copies of the copyrighted work
that he owns does not do him any good in trying overcome this impediment
to his copying.
If what you mean by "transfer" is that Bob shows that the copyright
ownership that Alice had asserted had really been transferred to Bob,
then, of course Bob is off the hook (court will no longer support
Alice's attempt to impede Bob's copying). But that result is because of
Alice's LOSS of the relevant copyright, not because of Bob's gain. The
same result would obtain even if Bob showed that Alice had transferred
the asserted copyright to someone else (not to Bob).
-- Scott

-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
Sent: Monday, February 09, 2004 1:19 PM
To: Peterson, Scott K (HP Legal)
Cc: [EMAIL PROTECTED]
Subject: Re: The Copyright Act preempts the GPL

Peterson, Scott K (HP Legal) scripsit:


- rights that are enumerated in the Bill of Rights, such as relating 
to free speech;


Well, very good.  Let's take "free speech" and plug it into your
explication of affirmative rights:

If, when impeded in some way from undertaking one of the actions
constituting free speech, a speaker could go to
court and use the free speech rights to overcome the impediment -
that 

would be an exercise of an affirmative right.


But you cannot go to court and overcome the impediment that prevents you
(to be maximally cliche-ridden) from shouting "Fire" in a crowded
theatre.
So it might be that you call a right "affirmative" if in *some*
circumstances you can get a court to overcome a hindrance from
exercising them.  But then consider this hypo:  Alice gets an T.R.O. (a
"hindrance" par excellence) to prevent Bob from making copies of the
book _Cryptography for Idiots_.  Bob goes to court and proves that by a
transfer of copyright ownership, he is the copyright owner of _CfI_ and
therefore has the right under Section 106 (a) to reproduce the
copyrighted work.  Surely this right is affirmative?


--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

RE: The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

Your hypothetical is directly on point:
"Bob goes to court and proves that by a transfer of copyright ownership,
he is the copyright owner of _CfI_ and therefore has the right under
Section 106 (a) to reproduce the copyrighted work.  Surely this right is
affirmative?"

That is precisely the right that I am pointing out that I have NOT seen
exercised and for which I am aware of no basis in US law. I do not
believe that a showing by Bob that he is the copyright owner would help
him at all. 

For example, Alice may have a copyright in a different book, and Alice
may be asserting that the book that Bob's been distributing infringes
her rights in her book. Bob's acquisition of copyright ownership in the
book that he's distributing does not help him in Alice's case against
him. In other words, Bob's right to make copies of the copyrighted work
that he owns does not do him any good in trying overcome this impediment
to his copying.

If what you mean by "transfer" is that Bob shows that the copyright
ownership that Alice had asserted had really been transferred to Bob,
then, of course Bob is off the hook (court will no longer support
Alice's attempt to impede Bob's copying). But that result is because of
Alice's LOSS of the relevant copyright, not because of Bob's gain. The
same result would obtain even if Bob showed that Alice had transferred
the asserted copyright to someone else (not to Bob).

-- Scott

-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
Sent: Monday, February 09, 2004 1:19 PM
To: Peterson, Scott K (HP Legal)
Cc: [EMAIL PROTECTED]
Subject: Re: The Copyright Act preempts the GPL


Peterson, Scott K (HP Legal) scripsit:

> - rights that are enumerated in the Bill of Rights, such as relating 
> to free speech;

Well, very good.  Let's take "free speech" and plug it into your
explication of affirmative rights:

> > If, when impeded in some way from undertaking one of the actions
> > constituting free speech, a speaker could go to
> > court and use the free speech rights to overcome the impediment -
that 
> > would be an exercise of an affirmative right.

But you cannot go to court and overcome the impediment that prevents you
(to be maximally cliche-ridden) from shouting "Fire" in a crowded
theatre.

So it might be that you call a right "affirmative" if in *some*
circumstances you can get a court to overcome a hindrance from
exercising them.  But then consider this hypo:  Alice gets an T.R.O. (a
"hindrance" par excellence) to prevent Bob from making copies of the
book _Cryptography for Idiots_.  Bob goes to court and proves that by a
transfer of copyright ownership, he is the copyright owner of _CfI_ and
therefore has the right under Section 106 (a) to reproduce the
copyrighted work.  Surely this right is affirmative?

-- 
John Cowanhttp://www.ccil.org/~cowan
[EMAIL PROTECTED]
Please leave your valuesCheck your assumptions.  In
fact,
   at the front desk.  check your assumptions at the
door.
 --sign in Paris hotel   --Cordelia Vorkosigan
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

Re: The Copyright Act preempts the GPL

[jcowan]

Peterson, Scott K (HP Legal) scripsit:

> - rights that are enumerated in the Bill of Rights, such as relating to
> free speech;

Well, very good.  Let's take "free speech" and plug it into your
explication of affirmative rights:

> > If, when impeded in some way from undertaking one of the actions 
> > constituting free speech, a speaker could go to
> > court and use the free speech rights to overcome the impediment - that 
> > would be an exercise of an affirmative right.

But you cannot go to court and overcome the impediment that prevents you
(to be maximally cliche-ridden) from shouting "Fire" in a crowded theatre.

So it might be that you call a right "affirmative" if in *some*
circumstances you can get a court to overcome a hindrance from
exercising them.  But then consider this hypo:  Alice gets an T.R.O. (a
"hindrance" par excellence) to prevent Bob from making copies of the
book _Cryptography for Idiots_.  Bob goes to court and proves that by
a transfer of copyright ownership, he is the copyright owner of _CfI_
and therefore has the right under Section 106 (a) to reproduce the
copyrighted work.  Surely this right is affirmative?

-- 
John Cowanhttp://www.ccil.org/~cowan  [EMAIL PROTECTED]
Please leave your valuesCheck your assumptions.  In fact,
   at the front desk.  check your assumptions at the door.
 --sign in Paris hotel   --Cordelia Vorkosigan
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

Re: The Copyright Act preempts the GPL

[jcowan]

Peterson, Scott K (HP Legal) scripsit:

> If, when impeded in some way from undertaking one of the actions
> exclusive to the copyright holder, a copyright holder could go to court
> and use the copyright rights to overcome the impediment - that would be
> an exercise of an affirmative right. 

In that case, please give an example of what you do consider an affirmative
right.

> As I am not aware of an example of a copyright holder exercising a right
> in such a way, I continue to find it most helpful to think of copyright
> as a negative right.

No one can quarrel with what it is that you find most helpful.

-- 
John Cowan   [EMAIL PROTECTED]
"You need a change: try Canada"  "You need a change: try China"
--fortune cookies opened by a couple that I know
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

RE: The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

"In that case, please give an example of what you do consider an
affirmative right."

For example, 
- rights that are enumerated in the Bill of Rights, such as relating to
free speech;
- various rights relating to ownership of physical property.

-- Scott

-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
Sent: Monday, February 09, 2004 10:34 AM
To: Peterson, Scott K (HP Legal)
Cc: [EMAIL PROTECTED]
Subject: Re: The Copyright Act preempts the GPL


Peterson, Scott K (HP Legal) scripsit:

> If, when impeded in some way from undertaking one of the actions 
> exclusive to the copyright holder, a copyright holder could go to 
> court and use the copyright rights to overcome the impediment - that 
> would be an exercise of an affirmative right.

In that case, please give an example of what you do consider an
affirmative right.

> As I am not aware of an example of a copyright holder exercising a 
> right in such a way, I continue to find it most helpful to think of 
> copyright as a negative right.

No one can quarrel with what it is that you find most helpful.

-- 
John Cowan   [EMAIL PROTECTED]
"You need a change: try Canada"  "You need a change: try China"
--fortune cookies opened by a couple that I know
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

Re: The Copyright Act preempts the GPL

[Alexander Terekhov]

John Cowan wrote:
[...]
> Questionless.  But machines don't compile code, people use 
> machines to compile code.  Similarly, you can use the GIMP 
> to colorize a photograph (thus creating a derivative work), 

Absent some additional "creative input" (e.g. selection of
color) from human being, I wouldn't consider it a derivative
work. I don't think that my screen saver which does pretty
funny transformations of screen pictures creates any 
derivative works. (work-for-hire? slavery? oh-my-god! ;-) )

regards,
alexander.

--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

RE: The Copyright Act preempts the GPL

[Peterson, Scott K (HP Legal)]

If, when impeded in some way from undertaking one of the actions
exclusive to the copyright holder, a copyright holder could go to court
and use the copyright rights to overcome the impediment - that would be
an exercise of an affirmative right. 

As I am not aware of an example of a copyright holder exercising a right
in such a way, I continue to find it most helpful to think of copyright
as a negative right.

-- Scott

-Original Message-
From: Tony Stanco [mailto:[EMAIL PROTECTED] 
Sent: Saturday, February 07, 2004 8:07 AM
To: [EMAIL PROTECTED]; Peterson, Scott K (HP Legal); 'John Cowan'
Cc: [EMAIL PROTECTED]
Subject: Re: The Copyright Act preempts the GPL


Scott,

my understanding is the same as Larry's. Copyright provides exclusive
plenary rights to the owner. Patents provide the owner only with the
right to exclude others. I think the distinction was grounded in the
fact that it would be hard to conflict with someone else's copyright in
an original work (which usually stood alone), while complex,
interrelated processes/machines could easily involve multiple and
conflicting patents. As a result, patents are only negative rights and a
person's exploitation of a particular patent in subject to the non
existence of conflicting patent(s).

Best regards,
Tony


- Original Message - 
From: "Lawrence E. Rosen" <[EMAIL PROTECTED]>
To: "'Peterson, Scott K (HP Legal)'" <[EMAIL PROTECTED]>; "'John
Cowan'" <[EMAIL PROTECTED]>
Cc: <[EMAIL PROTECTED]>
Sent: Friday, February 06, 2004 8:39 PM
Subject: RE: The Copyright Act preempts the GPL


> Scott Peterson wrote:
> > The rights provided under US copyright law are negative rights (the 
> > right to exclude others), not positive rights (the right to do 
> > something yourself).
>
> I don't think so, Scott. At least that's not how the copyright act 
> reads:
>
> "...The owner of copyright under this title has the
> exclusive rights to do and to authorize any of the
> following"
>
> The patent law is exactly the opposite.
>
>"...Every patent shall contain ... a grant to the patentee ...
>to exclude others from using or selling"
>
> /Larry Rosen
>
> --
> 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 preempts the GPL

[jcowan]

Rod Dixon scripsit:

> In addition to the point made, you might inquire whether what a machine
> does when compiling code is an apt comparison to what an individual does
> when translating text. My answer is no since machines cannot be authors
> under Copyright law.

Questionless.  But machines don't compile code, people use machines to
compile code.  Similarly, you can use the GIMP to colorize a photograph
(thus creating a derivative work), but that does not make the colorized
photograph the product of a "mere mechanical process".

-- 
John Cowan  [EMAIL PROTECTED]  www.reutershealth.com  www.ccil.org/~cowan
Consider the matter of Analytic Philosophy.  Dennett and Bennett are well-known.
Dennett rarely or never cites Bennett, so Bennett rarely or never cites Dennett.
There is also one Dummett.  By their works shall ye know them.  However, just as
no trinities have fourth persons (Zeppo Marx notwithstanding), Bummett is hardly
known by his works.  Indeed, Bummett does not exist.  It is part of the function
of this and other e-mail messages, therefore, to do what they can to create him.
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

Re: The Copyright Act preempts the GPL

[Ruth A. Kramer]

> Alexander Terekhov scripsit:
> 
> > To me, compilers (and tools like http://world.altavista.com)
> > do nothing but "transliteration", not "translation" in the
> > legal sense. I may be wrong, of course.

I may be off the mark, but to me, part of the implied "question"
(perhaps in an earlier post?) is whether a compiled program is a
derivative work of the compiler?

IANAL, but in my understanding it is not.  It is, however, a derived
work of the source code, IIUC.

Randy Kramer
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Re: The Copyright Act preempts the GPL

[Rod Dixon]

In addition to the point made, you might inquire whether what a machine
does when compiling code is an apt comparison to what an individual does
when translating text. My answer is no since machines cannot be authors
under Copyright law.
Rod


On Mon, 9 Feb 2004, John Cowan wrote:

> Alexander Terekhov scripsit:
>
> > To me, compilers (and tools like http://world.altavista.com)
> > do nothing but "transliteration", not "translation" in the
> > legal sense. I may be wrong, of course.
>
> A strong point, certainly; but I think legal language, like ordinary
> language, applies "mechanical" to only a small subset of the acts that
> can actually be done by machines these days; roughly, those performable
> by machines that have only a small amount of state or none at all.
>
> Certainly machine translation is not translation in the full sense of
> the word, but the (very imperfect) state of the art requires considerably
> more state than seems to me consistent with the meaning of the word
> "mechanical".
>
> --
> All Norstrilians knew what laughter was:John Cowan
> it was "pleasurable corrigible malfunction".http://www.reutershealth.com
> --Cordwainer Smith, _Norstrilia_[EMAIL PROTECTED]
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
>
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Re: The Copyright Act preempts the GPL

[John Cowan]

Alexander Terekhov scripsit:

> To me, compilers (and tools like http://world.altavista.com) 
> do nothing but "transliteration", not "translation" in the 
> legal sense. I may be wrong, of course.

A strong point, certainly; but I think legal language, like ordinary
language, applies "mechanical" to only a small subset of the acts that
can actually be done by machines these days; roughly, those performable
by machines that have only a small amount of state or none at all.

Certainly machine translation is not translation in the full sense of
the word, but the (very imperfect) state of the art requires considerably
more state than seems to me consistent with the meaning of the word
"mechanical".

-- 
All Norstrilians knew what laughter was:John Cowan
it was "pleasurable corrigible malfunction".http://www.reutershealth.com
--Cordwainer Smith, _Norstrilia_[EMAIL PROTECTED]
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

Re: The Copyright Act preempts the GPL

[Alexander Terekhov]

John Cowan wrote:
>
> Alexander Terekhov scripsit:
> 
> > Why is it a derivative work? I could imagine "a computer" 
> > (interpreter) that can run "program tarballs". Why simple 
> > addition of an intermediate step (required to run the 
> > program) makes something a derivative work? Wouldn't that 
> > mean that I'll need your permission to use this or that 
> > compiler (in order to "prepare derivative work")? 
> 
> A compiled program is a derivative work of the source code because
> it is the result of a transformation of that source code, just as
> much as if natural-language text in Polish had been translated to
> French.

Note that

www.ipmall.info/hosted_resources/CopyrightCompendium/chapter_0300.asp



A translation is a rendering of a work from one language to 
another, as, for example, a work translated from Russian into 
French, or from German into English. However, transliterations 
and similar processes by which letters or sounds from one 
alphabet are converted to another are not copyrightable since 
the conversion is merely a mechanical act. Thus, merely 
changing a work from the Cyrillic to the Roman alphabet would 
not be copyrightable.



To me, compilers (and tools like http://world.altavista.com) 
do nothing but "transliteration", not "translation" in the 
legal sense. I may be wrong, of course.

> 
> If there is no compiled version, and you interpret the source code
> directly, then there certainly is no derivative work.

I think the same applies to the compiled program. Conversion 
by "mere mechanical act" doesn't constitute creation of 
derivative work.

regards,
alexander.

To: Alexander Terekhov/Germany/[EMAIL PROTECTED]
cc: [EMAIL PROTECTED] 
Subject:Re: The Copyright Act preempts the GPL


Alexander Terekhov scripsit:

> Why is it a derivative work? I could imagine "a computer" 
> (interpreter) that can run "program tarballs". Why simple 
> addition of an intermediate step (required to run the 
> program) makes something a derivative work? Wouldn't that 
> mean that I'll need your permission to use this or that 
> compiler (in order to "prepare derivative work")? 

A compiled program is a derivative work of the source code because
it is the result of a transformation of that source code, just as
much as if natural-language text in Polish had been translated to
French.

If there is no compiled version, and you interpret the source code
directly, then there certainly is no derivative work.

If the code is Open Source, then of course you don't need my permission
to compile it, as that is implied in the general permission to make
copies and derivative works that all Open Source programs must have
by the OSD.

-- 
Henry S. Thompson said, / "Syntactic, structural,   John Cowan
Value constraints we / Express on the fly." [EMAIL PROTECTED]
Simon St. Laurent: "Your / Incomprehensible 
http://www.reutershealth.com
Abracadabralike / schemas must die!"http://www.ccil.org/~cowan


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Re: The Copyright Act preempts the GPL

[Rod Dixon]

Putting aside the issue that a 3 line computer program may lack the
minimal indicia of originality to be copyrightible in the first place,
strictly speaking, what Bob may do with his derivative work (if that one
line code is copyrightible) may depend upon whether Bob wants to
distribute the work or use it (internally). In other words, section 117
and section 107 may limit the reach of Alan's right to control the
distribution of derivative works. BTW, if you recall the courts' general
confusion and disagreement over how far you may take section 107 in the
video game cases, it becomes apparent that in some cases fair use is not
an insignificant matter. In addition, when you apply judicial
interpretations of derivative use, you begin to notice that the language
of the Copyright Act is a mere starting point. How judicial doctrine on
derivative use will be applied to software or other digital works is often
an open question (e.g., Tasini v. New York Times modifications of
collective work constituted new work, not derivative [revised] work).
Consequently, to prove that a derivative work is infringing, courts have
read into section 101 two general requirements: 1) the derivative work
must incorporate some of the original copyrighted work, and 2) the
infringing derivative work must be substantially similar to the original
copyrighted work.  To make these determinations, the court uses various
tests, including a test one poster mentioned earlier (abstraction etc.).

In my opinion, current judicial doctrine on derivative works - - in the
proof of infringement context - - lacks practical use for software
developers, but, as it stands, you cannot ignore it either. And, you may
not want to ignore judicial doctrine if you authored the derivative work
since the doctrine generally goes further than the words of the Copyright
to render some ostensibly derivative works non-infringing in my opinion.

Rod
[EMAIL PROTECTED]


On Sun, 8 Feb 2004, John Cowan wrote:

> Peter Fairbrother scripsit:
>
> > Alan writes an original computer program. It is 3 lines long. It is called
> > "Hello world".
> >
> > Bob takes Alan's program and replaces line 2. The new program is called
> > "Goodbye asshole".
> >
> > "Goodbye asshole" is a derivative work.
> >
> > If Bob did not have Alan's permission to create a derivative work then he
> > gets no rights at all.
>
> So far so good.
>
> > If Bob had Alan's permission to create a derivative work then he gets the
> > sole right to distribute line 2.
>
> He had that much even without Alan's permission, since line 2 is solely
> his work.  This paragraph belongs to me, though only with your (implied)
> permission can I use it in this email, which is a derivative work of
> your email.  (That is assuming that my use of your email is not a fair
> use, which I think it almost certainly is, but that's a different kettle
> of fish).
>
> > He does not get any right to distribute lines 1 and 3. He cannot distribute
> > "Goodbye asshole" including lines 1 and 3 without separate permission from
> > Alan.
>
> Once the derivative work is lawfully created, Bob is the copyright owner,
> and has all the exclusive rights of the copyright owner.
>
> And now I'm going to shut up, because obviously we are looping, and I'm
> not going to convince you nor vice versa.
>
> --
> "And it was said that ever after, if anyJohn Cowan
> man looked in that Stone, unless he had a   [EMAIL PROTECTED]
> great strength of will to turn it to other  www.ccil.org/~cowan
> purpose, he saw only two aged hands withering   www.reutershealth.com
> in flame."   --"The Pyre of Denethor"
> --
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>
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Re: The Copyright Act preempts the GPL

[John Cowan]

Peter Fairbrother scripsit:

> Alan writes an original computer program. It is 3 lines long. It is called
> "Hello world".
> 
> Bob takes Alan's program and replaces line 2. The new program is called
> "Goodbye asshole".
> 
> "Goodbye asshole" is a derivative work.
> 
> If Bob did not have Alan's permission to create a derivative work then he
> gets no rights at all.

So far so good.

> If Bob had Alan's permission to create a derivative work then he gets the
> sole right to distribute line 2.

He had that much even without Alan's permission, since line 2 is solely
his work.  This paragraph belongs to me, though only with your (implied)
permission can I use it in this email, which is a derivative work of
your email.  (That is assuming that my use of your email is not a fair
use, which I think it almost certainly is, but that's a different kettle
of fish).

> He does not get any right to distribute lines 1 and 3. He cannot distribute
> "Goodbye asshole" including lines 1 and 3 without separate permission from
> Alan.

Once the derivative work is lawfully created, Bob is the copyright owner,
and has all the exclusive rights of the copyright owner.

And now I'm going to shut up, because obviously we are looping, and I'm
not going to convince you nor vice versa.

-- 
"And it was said that ever after, if anyJohn Cowan
man looked in that Stone, unless he had a   [EMAIL PROTECTED]
great strength of will to turn it to other  www.ccil.org/~cowan
purpose, he saw only two aged hands withering   www.reutershealth.com
in flame."   --"The Pyre of Denethor"
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Re: The Copyright Act preempts the GPL

[Peter Fairbrother]

Alan writes an original computer program. It is 3 lines long. It is called
"Hello world".

Bob takes Alan's program and replaces line 2. The new program is called
"Goodbye asshole".

"Goodbye asshole" is a derivative work.

If Bob did not have Alan's permission to create a derivative work then he
gets no rights at all.

If Bob had Alan's permission to create a derivative work then he gets the
sole right to distribute line 2.

He does not get any right to distribute lines 1 and 3. He cannot distribute
"Goodbye asshole" including lines 1 and 3 without separate permission from
Alan.

-- 
Peter Fairbrother

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