On Apr 12, 8:36 pm, "amicus_curious" <a...@sti.net> wrote: > "Hadron" <hadronqu...@gmail.com> wrote in message > > news:rs3c97-ep1....@news.eternal-september.org... > > > > > Rex Ballard <rex.ball...@gmail.com> writes: > > >> On Mar 15, 6:03 pm, RJack <u...@example.net> wrote: > >>> Rex Ballard wrote: > >>> > And before ANY of that goes to a jury, both sides have to show their > >>> > cards to the Judge and to each other. > > >>> Before ANY of this even goes to the discovery stage, the defendants > >>> will file FRCP Rule 12 Motions to Dismiss challenging the legal > >>> enforceability of the GPL contract. Only *after* determining the > >>> enforceability of the GPL will the court be in a position to determine > >>> what is relevant in its discovery orders. The enforceability of the > >>> GPL is a matter of law and is determined by the trier of law (the judge > >>> not the jury) hence the repeated language "the license speaks for > >>> itself". One thing to watch in the defendant Answers is the language of > >>> their defenses. > > >> The question at issue is whether copyright licenses are valid. > > > Answer : yes they are. And no amount of whining and freetardery will > > change that. > > Things are not that simple, else, why have lawyers? If you, say, take a > photograph of the Toledo skyline at nightfall and publish the image, you own > the copyright to that image and no one can use it without your permission. > But if someone else borrows your camera and goes to the same spot and takes > an identical photograph, they can use their photo as they wish. Copyright > essentially pertains to "and expression, fixed in a media" as the act reads. > Now consider that the binary form of a software program is the image. Then > the computer used to compile the software binary is, in effect, the camera > and the source code is the directions on where to stand and where to point > the camera. Is that source code protected as a unique expression, too? I > don't think that question has been answered in court as yet.
Both the statute of 1976 and precedent has already established that the code compiled from source is also protected. The only time a compiler could alter the copyright is if the compiler generates or include copyrighted code from other sources. The Bison compiler is a good example. I argued with Richard Stallman that if proprietary code was compiled under Bison, then moving the proprietary code into GNU license would be stealing the code. Richard responded, reminding me that if the owner of the proprietary code did not want to publish his code under GPL, they should use another compiler such as YACC. Eventually, the problem was solved when the authors of YACC published a version of YACC under GPL which did not put the code generated by the program under GPL. Linux has consistently taken a very pragmatic approach to blending both GPL and proprietary software, using LGPL applications and shared libraries to isolate proprietary compiled code from public license code. > If you go back to the first principles and see where the copyright is to > protect the artist's expression and reason that is mainly due to protecting > the artist's income from his work, Actually, according to the constitution, and the statute, the aim was to promote the free exchange of information and ideas. There is no requirement that an artist be compensated in cash. The artist or author is providing consideration in the form of the copyrighted work - and the contract is the license agreement, in which the copyright owner may stipulate the terms and conditions of use. The same work can be published under different licenses. For example, a digital video could be licensed for home use when it's sold in stores. It could be licensed for theater exhibition when it's loaned to theaters. It could be licensed for broadcast when a copy is loaned or given to a broadcaster. A bar has to purchase a different license for ESPN than a home viewer. Copyright law governs not only duplication of the media, but also performances, or play-backs. Technically, even a play-back is a copy because the content must be copied from the storage device to the memory and registers of the playback device. This is why it's illegal to interfere with software that records the performance history of a media player. The Digital Millinium Copyright act more clearly restricts alterations to play- back devices or duplication technology - making it illegal to remove information that helps track duplication and performance as well as detecting piracy. The DMCA also prevents users of media from creating software which encourages illegal copying - this is why DVD-CSS driver for Linux was blocked in the United States. This was why the copyright act of 1976 was passed. > the problem gets even more cloudy when > there is no financial benefit accruing to the artist in the open source > world. Actually, the artist or author is the one who is providing the consideration. What he is "selling" is a specific set of license terms. Just because you buy a CD at Sam Goody's doesn't mean that you can then put that CD on your web site and let everybody download it for free. Your license stipulates home use or personal use only. > No damage, no compensation in the contracts world, hence the > insistence that the GPL is not a contract. Actually, the GPL is a contract, because FSF has provided the item of value, and accepting the item of value binds the licensee to the terms of the license. If you don't like the terms of the Microsoft EULA or OEMLA - don't install it. Replace it with a License you do like. Legally, even if you didn't pay a dime for the license - out of your own pocket - you would still be bound to the terms of the Microsoft License agreements. The same is true with GNU licenses or any other Open Source license. The artist, author, or publisher is publishing his works under the terms of a license agreement. Different license agreements, even different Open Source Licenses vary in their terms, but the terms are legally binding. If Richard Stallman decided that he wanted a picture of the bearded GNU on every package and display that was equal in size to any logo of any other competitor, then you would have to either put on the picture, or stop using the software. In this case, Richard Stallman's only requirement is that you provide a link to a public web site showing the location of the GPL and LGPL portions of the code. You don't have to publish your drivers. You don't have to publish your plug-ins You don't have to publish applications or servers that call glibc as a shared library. Several have contested these license terms, and the rules of law are usually established during the preliminary rulings. Any of these respondents could hope for a judge who will see things differently. But unless you have a pretty strong case that the author or publisher has actually put the source code in public domain - the Judge is probably going to rule that the material is copyrighted and the plaintiff is therefore entitled to enforce the terms of a copyright license. To get past the preliminary ruling, the plaintiff would have to pretty much find a smoking gun - that the precise code being contested - was published under BOTH the GPL AND either a less restrictive license, such as BSD, or was put into public domain by the author. Even this could be a problem, because if there is even ONE enhancement that was ONLY published under GPL, and the contested software contains the GPL enhancement, then the license would still be valid. Normally, these trials rarely go beyond the preliminary rulings, because these rulings help to determine the negotiating leverage of both parties. When the judge rules against you on key issues, you tend to be more willing to accept the other party's terms. Ironically, all the licensees would have to do is comply with the terms of the license. If they comply early in the game, SFLC is likely to request dismissal without prejudice - with each side paying their own legal costs. If they try to drag it out and push for lots of disclosure - then there is a likelihood that as more rulings and findings go against the defendent, the defendent may end up having to pay legal fees of the plaintiff. _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss