Linux-Advocacy Digest #300, Volume #28 Tue, 8 Aug 00 05:13:04 EDT
Contents:
Re: Richard Stallman's Politics (was: Linux is awesome! (T. Max Devlin)
Re: Richard Stallman's Politics (was: Linux is awesome! (T. Max Devlin)
Re: Richard Stallman's Politics (was: Linux is awesome! (T. Max Devlin)
On Software and Copyright: Sega (T. Max Devlin)
Re: Richard Stallman's Politics (was: Linux is awesome! (T. Max Devlin)
----------------------------------------------------------------------------
From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: gnu.misc.discuss
Subject: Re: Richard Stallman's Politics (was: Linux is awesome!
Date: Tue, 08 Aug 2000 04:44:38 -0400
Reply-To: [EMAIL PROTECTED]
Said Isaac in comp.os.linux.advocacy;
>On Sun, 06 Aug 2000 07:48:57 -0400, T. Max Devlin <[EMAIL PROTECTED]> wrote:
[...]
>Fair enough. I'll put it simply. You don't know seem to know
>enough about what plug-ins and libraries are to have an informed opinion
>about them.
You seem to have to know too much about them as functional works to have
a reasonable opinion about them as copyrighted material. Knowledge of
plug-ins and libraries as useful software is irrelevant; it is only
their value as works of literature which makes sense in terms of
copyright. I honestly think that you're unable to agree with my premise
and conclusions because you have been taught that software is both
copyrightable and a feat of engineering, and since that couldn't be true
if the two conflicted, you assume it means they don't conflict. Even
when discussions like this, and the supposedly "counter-intuitive"
decisions on legal questions, point out that there is indeed a great
deal of conflict.
In a strict interpretation of source code as copyrighted work, shared
libraries are an abomination. They would *have* to be public domain, if
they were as limited to literal aspects as literary work is. That their
functional nature and value as feats of engineering belies their
putative nature as works of authorship is, indeed, a fundamental
conflict which I can only see being resolved by recognizing that a
program which uses a library is a derivative work, as is a library which
is used by a program. A large leap between the simple conflict and my
seemingly outrageous conclusion, but I was lead there slowly by the
discussion in the thread. Without retracing our steps, I'd like to
simply conclude that RMS's position stands unscathed.
But if anyone really wishes to pursue it, while contemplating this
response, it occurred to me that an argument might be made that a
program making a function call to a library might be modeled as a
citation in a technical paper, and thus it might both uphold software as
literature and support functional engineering. Would anybody like to
take up the discussion?
[...]
>>My premise is that there is no real distinction vis-a-vis copyright law
>>between library and program. As Lee is fond of pointing out, "copyright
>>law does not protect functionality".
>>
>We all agree on this. But why don't you then conclude that it's just as
>true that a library can be derivative of the programs which call it.
But I have. A library can be derivative of the programs which call it.
That isn't to say a particular library *is* derivative, but I do see
that as the reasonable conclusion to the supposition that software is
source code is literary work is protected by copyright.
>I'll explain.
>
>Applications call plug-ins in order to invoke the functionality of
>the plug-in. The plug-in itself may be either another application or
>a just a dynamic library.
Perhaps it is mere vernacular, perhaps not, but I would suggest that an
application *launches* a plug-in. I may be wrong; you are correct I
don't know the details of the code involved. Even if the plug-in is
"just" a library, it is still an application, in some respects, if not
an executable file. The very concept of plug-ins as initially derived
by Netscape was to treat the application as a platform, an OS even,
which makes plug-ins applications, almost by definition.
>Programs call library functions in order to invoke the functionality of
>the library. The library function can by in a dynamic library or it
>can be a function in an application.
>
>You are the one inverting the relationship. But I see that you must.
>It is the only way to escape the unavoidable and unacceptable
>conclusion that your premises lead to.
I haven't the foggiest idea what you mean when you do this, and this is,
by my count, at least the third time. I do not argue for pretense, and
do not base my considerations on a mandate for a desirable conclusion.
I'm not inverting any relationships; I'm hand-waving them. They're
meaningless. There is code, and that is all. Function, file, and
labels are all irrelevant (and, you'll possibly some day grasp, in
conflict) to software as copyrighted material.
[...]
>In your view, Photoshop and Gimp are merely application launchers for
>plug-ins. Apparently you also belive that programs simply do a little
>bookkeeping and then call libraries to implement their functionality.
In my view, Photoshop and Gimp *may well be* mere launch pad facilities.
This makes them no less worthy of copyright protection in their own
right; good and original launch pads, in fact, are one of the most
valuable kind of software. It is possible for programs to simply do a
little bookkeeping and then call libraries to implement their
functionality. If that is possible and can provide value in its own
right, I'd like to encourage their development, in fact. I realize that
treating software as copyrighted material might be somewhat
counter-productive in that regard, and so I'd just as soon see copyright
protection on computer source code go away for the most part (it would
always apply in particular cases). But I doubt that's going to happen.
The question is; now what do we do? RMS worked most of this out, I
think, many years ago, and so his answer seems to be "GPL". I'm all for
it. I take it you're not?
>Perhaps that is true for some programs and some libraries, but it's certainly
>not true for all.
The problem, of course, is that you can't know which ones unless you
force the issue. Another good reason for GPL. Like I said, I think
encouraging copyright protection on small code is undervalued today.
When even big code is a "de facto commodity", small code will regain its
vital and valuable function. And that is where 80% of the massive
advance in PC development is going to come from five to ten years from
now, I'll wager.
>>confess it is difficult for me to agree with. If only because it is a
>>meaningless dichotomy in either form; software is source code, and
>>library and program and application and plug-in are labels which are
>>meaningless in copyright terms, in the end.
>>
>You have attached lots of meaning to those terms. Meaning which you
>now dismiss. It has been my intention to show that the meaning you
>attach leads to absurd conclusions.
I'm not sure why you think so. I don't mean that as an insult or
deflection. I don't believe I've attached any weighty meaning to those
terms not provided to me by someone else's context. I just use the
labels for the things everybody else does. I do know what a plug-in is,
and a library, and while I don't know how the code is necessarily
different between them, I don't consider them magic and I expect that
either could become the other, potentially without even modifying the
code. Tell me, is it how it is treated, or how it works, which
differentiates and application, a plug-in, and a library?
[...]
>Read the following again and notice how your mind slides over the word
>'preexisting' and is not impressed.
>
> A ''derivative work'' is a work based upon one or more
> preexisting works, such as a translation, musical arrangement,
> dramatization, fictionalization, motion picture version, sound
> recording, art reproduction, abridgment, condensation, or any
> other form in which a work may be recast, transformed, or
> adapted. A work consisting of editorial revisions, annotations,
> elaborations, or other modifications which, as a whole, represent
> an original work of authorship, is a ''derivative work''.
>
>That paragraph is the entire statutory definition of a derivative work.
>Of course the law is interpreted by courts. If you wish to argue that
>the courts have not required that a work must be created after the
>base work to be considered derivative then you have a convincing argument.
>Otherwise you are reading selectively. Can I expect some cites to
>court decisions or will I hear more arguing from "first principles"?
No, you can expect the same argument I've always used, and never had
addressed but for hand-waving. The key concept is not "pre-existing",
but "created" and "work". It might seem pseudo-paranormal mind-bending
of a flake from your side of the Internet, but the fact is that the
coding of a piece of software is considered to be conjointly a work of
functional engineering design *and* a creative work of authorship
(essentially, even solely, due to its textual form, I believe). The
assumption appears to be that these are executed simultaneously, but the
fact is that one can't call a library unless one knows what the library
does. So does the creation of the literary work of 'program' (which
ultimately must be coherent, which means it must be linked to the
library) occurring prior to the authorship, but not prior to at least
some aspects of the design, not indicate how this supposed "time warp"
phenomenon makes the use of "pre-existing" as a key concept somewhat
problematic, at best?
>But order is a side issue. The only reason for bringing it up is that
>for circumstances in which a program is created before a library exists,
>it is clearly the law that the program is not a derivative of the
>library.
That will be clearly the law when you can show me a court case setting a
precedent to that fact.
>Clearly in at least that instance, your analysis gives the
>wrong result. The cases cited further down suggest other situations
>where you would give a different result than the courts do.
Finally! Where?
[...]
>On the other hand, I freely admit that I have student access to Westlaw
>and Lexis so it is veru easy for me this stuff up.
Let's have it then. Quite yapping.
>Perhaps my
>intolerance with you not following up on cited cases is a little unfair.
It absolutely is. I'm rather studious, and spend far more than a
reasonable amount of time, trying to examine just the tiny proportion of
information on my subjects of discussion. The trick is being able to
*find* the cogent bits, and I must rely on otherwise with easier access
and more familiarity to be civil about providing them. Unfortunately,
simple and often abbreviated quotes are used most often on Usenet (and
other written works) to extract misleading indications from a work which
in a broader context might not support the point very well at all. Urls
are greatly appreciated.
[...]
>You can find lots of summary and discussion on the Sega v. Accolade
>case by doing a simple web search. I'm really surprised that that
>case isn't cited more frequently by people who feel similar to the
>way I do about linking to dynamic libraries. If you feel up to
>debating about the relevance of that particular case I'd be
>intrigued.
The problem is one can find far too many "lots of" by doing a web
search. I use WebFerret, an elegant, simple, but devastatingly powerful
search system. Its kind of useful if someone thinks that something
might be important to have something a bit more specific in terms of
where to find relevant, complete, and well presented information on the
subject. And that's not even considering objective or authoritative.
I'd be more than happy to discuss the case with you. I insist, though,
that we start a new thread, and cross-post it to alt.destroy.microsoft.
Believe me, nobody will complain; that group is empty, and COLA will no
doubt appreciate the ability to easily ignore yet another (hopefully)
lengthy discussion from yours truly.
[...]
Thanks for your time. Hope it helps.
--
T. Max Devlin
Manager of Research & Educational Services
Managed Services
ELTRAX Technology Services Group
[EMAIL PROTECTED]
-[Opinions expressed are my own; everyone else, including
my employer, has to pay for them, subject to
applicable licensing agreement]-
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From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: gnu.misc.discuss
Subject: Re: Richard Stallman's Politics (was: Linux is awesome!
Date: Tue, 08 Aug 2000 04:44:42 -0400
Reply-To: [EMAIL PROTECTED]
Said Graham Murray in comp.os.linux.advocacy;
>In gnu.misc.discuss, T. Max Devlin <[EMAIL PROTECTED]> writes:
>
>> Personally, I would, for reasons you are trying to indicate, accept a
>> supposition that all Netscape plug-ins are derivative of Netscape. Why
>> you would think this makes Netscape derivative of plug-ins is not really
>> important; it may well be the case if the browser "derives" a great deal
>> of its value from the plug-ins. I am simply not willing to assume that
>> this is the case, and don't see why it is an issue.
>
>IMHO the situation can be even more complicated. Take RealPlayer,
>Netscape and Internet Explorer. Realplayer is a standalone application
>and can run happily as such, but it is also a plugin for Netscape and
>IE. So, are Netscape and IE derivatives of Realplayer? Or is
>Realplayer a derivative of both Netscape and IE? Or, do you treat the
>plugin as a separate product and say that it is a derivative of both
>Realplayer and Netscape or IE (as appropriate)?
In the case of Real and browsers, I would say that neither is derivative
of the any other, actually. The coupling is far too loose, and
obviously non-essential. But that is entirely based on limited
observation from an experienced end-user's perspective, and no knowledge
of the literal works themselves. Whether the plug-in is a separate
"product" or how it is dealt with in relation to the application is
irrelevant. Only the source code tells the tale. Is the plug-in a
launchpad for the application; how much of the interface/display
function does Netscape provide? Is the application a shell for the
library which is the plug-in? Would not a "paired down" Netscape that
pretty much just launched Real be "derivative" of the plug-in?
--
T. Max Devlin
Manager of Research & Educational Services
Managed Services
ELTRAX Technology Services Group
[EMAIL PROTECTED]
-[Opinions expressed are my own; everyone else, including
my employer, has to pay for them, subject to
applicable licensing agreement]-
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From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: gnu.misc.discuss
Subject: Re: Richard Stallman's Politics (was: Linux is awesome!
Date: Tue, 08 Aug 2000 04:44:44 -0400
Reply-To: [EMAIL PROTECTED]
Said Leslie Mikesell in comp.os.linux.advocacy;
[...]
>Even more complicated than that: If you accept the oddball concept
>that all programs loaded into the same address space become
>derivatives of each other, how do you deal with the case where
>one program is capable of dynamically loading many separate
>components under scripted control.
I question whether issues of address space are at issue, though that may
seem an oddball question. I could certainly use a primer on the
techniques and ramifications of linking techniques, if you wouldn't
mind, and could spare me the requisite digs.
>Perl and apache do this
>along with many others. Now, if someone distributes a perl
>script that causes perl to load GPL'd readline along with
>some commercial database library (for example), does this
>create an illegal situation according to copyright law, and
>if so, who is at fault?
It isn't a question of an "illegal situation" and "fault". It is an
issue of infringement and defense of copyright protection. The fact is
that as long as apache doesn't sue a component author, and the component
author doesn't sue apache, the situation need not be resolved to begin
with.
>Or, in Apache/mod_perl, the
>components are loaded as needed for each request but remain
>in memory for the life of the httpd child. What if unrelated
>web pages load different modules to create the same circumstance.
>In this case there may be no actual dependency between the
>two modules, yet they become loaded into the same memory
>address space.
My instinct, as most might be if they're following, is to consider the
relative reliance, co-dependance, and even functional value of the
programs and components, equally, involved.
Should not an author of a fantastic shared library which supports many
extensive and original applications have the liberty to prevent others
from merely linking to a few of his functions with a shell application
and charging people for the privileged of benefiting from his work?
Should that author die, and his code be so astoundingly advanced that
none can maintain it, and another author produce an original work which
provides the actual software code that the consumer/user benefits from
by supplying those functions, shouldn't the hack who simply wants to
avoid writing his own original code be prevented from infringing on the
library author's intellectual property? Does this not present a case
wherein a program infringes on the copyright of a library which did not
even exist when the program was written?
Its about *authorship*, guys, not *engineering*. Are you really trying
to tell me that creating original works is *harder* than programming
computers?
--
T. Max Devlin
Manager of Research & Educational Services
Managed Services
ELTRAX Technology Services Group
[EMAIL PROTECTED]
-[Opinions expressed are my own; everyone else, including
my employer, has to pay for them, subject to
applicable licensing agreement]-
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------------------------------
From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: gnu.misc.discuss,alt.destroy.microsoft
Subject: On Software and Copyright: Sega
Date: Tue, 08 Aug 2000 04:44:40 -0400
Reply-To: [EMAIL PROTECTED]
Said Isaac in comp.os.linux.advocacy;
[...]
>You can find lots of summary and discussion on the Sega v. Accolade
>case by doing a simple web search. I'm really surprised that that
>case isn't cited more frequently by people who feel similar to the
>way I do about linking to dynamic libraries. If you feel up to
>debating about the relevance of that particular case I'd be
>intrigued.
>
>Here you can find the actual case. The case is interesting because
>it discusses reverse engineering. Also of interest is that Sega was
>unable to prevent Accolade from writing computer games which called
>software in Sega's game console. I'm sure you'll understand the
>relevance of that.
>
> Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1992)
> http://laws.findlaw.com/9th/2/977/1510.html
>
[A note to Isaac; I'm hoping that this is the only case you thought
might contradict my theories on software copyright; I'm familiar with
the white pages decision, and don't see any conflict. I'll check out
the Nintendo v. Atari, but I'll reserve comments to Sega for now.]
First, I think the fact that it involves reverse engineering is very
cogent. Primarily because it seems to state that decompiling is reverse
engineering, and potentially that simple decompiling is reverse
engineering (though involving a proprietary console, more involved labor
was necessary in this case). This might be important in some other
questions, mostly, I think, concerning commercial software. I'm sure
its no secret, but I wasn't aware of a clear precedent. (All quotes are
from the quoted url.)
"As part of the reverse engineering process, Accolade transformed the
machine-readable object code contained in commercially available copies
of Sega's game cartridges into human-readable source code using a
process called 'disassembly' or 'decompilation'."
Second, while not contradicting my arguments or understanding in any
substantial way that I can see (so far, it's a big document), this
decision does have something interesting to say about copyrighted
software which leads to many subsequent questions and points of
discussion, though I'm not sure if this still stands as precedent:
"In light of the public policies underlying the Act, we conclude that,
when the person seeking the understanding has a legitimate reason
for doing so and when no other means of access to the unprotected
elements exists, such disassembly is as a matter of law a
fair use of the copyrighted work."
Is it legal to restrict someone's fair use of copyrighted material by
contractual obligation in order to access the material? Could this be
considered a potential argument for essentially disabling all "no
decompile" clauses in trade-secret style EULAs?
Third, the question of this case was not "whether Sega was able to
prevent Accolade from writing computer games which called software in
Sega's game console", as you put it, but:
"The question is whether the computer manufacturer may enjoin competing
cartridge manufacturers from gaining access to its computers through the
use of the code on the ground that such use will result in the display
of a "false" trademark."
Quite a different issue, and yet again more reminiscent of commercial
licensing than whether programs are derivative works of libraries
essential to their function. Remember, a derivative work does not have
to contain a *copy* of the original work to be derivative, so the fact
that the library code is not actually part of the program code is not
important at all.
A program which is "based on" a library (which might debatably be
considered a program which *requires* a library) is derivative of that
library. This much is clear from the RIPEM precedent, in fact.
The questions previously raised on another thread include whether such
"link infringement" is limited to only some library linking techniques,
and whether a single library is prerequisite. The FSF limit their legal
actions to cases where these points are not tested.
Finally, the immediate precedent to this thread (ignoring the "plug-in"
distraction for now) was whether a program could be considered a
derivative of a single library if the library wasn't coded until after
the program was "complete", considering the apparent contradiction in
copyright statute that a derivative work be based on a "pre-existing"
work. My contention is that this reliance on the term is over-weighted
and even out of context, as well as proved meaningless by the dual
nature of software as both work of authorship and engineering, on closer
examination, if only in thought experiments.
The question of how far anyone would like to discuss these theories,
mine, what the law might decide, or what the precedents mean, is left,
obviously, as an exercise for the reader.
--
T. Max Devlin
Manager of Research & Educational Services
Managed Services
ELTRAX Technology Services Group
[EMAIL PROTECTED]
-[Opinions expressed are my own; everyone else, including
my employer, has to pay for them, subject to
applicable licensing agreement]-
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From: T. Max Devlin <[EMAIL PROTECTED]>
Crossposted-To: gnu.misc.discuss
Subject: Re: Richard Stallman's Politics (was: Linux is awesome!
Date: Tue, 08 Aug 2000 04:44:45 -0400
Reply-To: [EMAIL PROTECTED]
Said Lee Hollaar in comp.os.linux.advocacy;
>In article <8mkb5i$2fja$[EMAIL PROTECTED]> [EMAIL PROTECTED] (Leslie Mikesell)
>discusses how many angels can dance on the head of a pin:
>
>>Even more complicated than that: If you accept the oddball concept
>>that all programs loaded into the same address space become
>>derivatives of each other, how do you deal with the case where
>
>Assuming you are talking about "derivative works" as part of copyright
>law, then nobody with any understanding of the law accepts that concept.
>
>Some people seem to think that a program that is written to take advantage
>of the interface to another program is a derivative work of that program.
>That does not seem to match the definition of "derivative work" in the
>copyright statute, nor has any court case interpreted the statute that
>way.
Could you be more explicit how this fact can be true and fgmp can still
exist. The countless scattered bits I've read have not provided a
coherent sequence of events. The fact that no court has interpreted the
statute that way might well be related to the fact that no court has
been presented a case which requires consideration of the issue.
>If you are talking about a "derivative" as something different from a
>"derivative work" in the copyright sense, then it would all depend on
>how you define "derivative". But then, who really cares?
I'm defining derivative work according to the statutes you've previously
quoted, I believe. The key concept seems that if one thing is "based
on" another, it is derivative. I'm not sure if anything more explicit
has been mentioned, though I suppose there must be some precedent
defining more comprehensively what relationship (besides the contentious
"pre-existing" bit) a derivative work has to the original in literal
terms.
[...]
>What "illegal situation according to copyright law"? And remember, if
>you are the owner of a copy of a computer program, you get to copy it and
>modify it as necessary to use it. 17 USC 117.
And don't forget fair use, which I've recently learned may extend to
decompiling: http://laws.findlaw.com/9th/2/977/1510.html
>>components are loaded as needed for each request but remain
>>in memory for the life of the httpd child. What if unrelated
>>web pages load different modules to create the same circumstance.
>>In this case there may be no actual dependency between the
>>two modules, yet they become loaded into the same memory
>>address space.
>
>So what? Please state how you feel copyright law applies to these
>situations, indicating the sections of the Copyright Act of 1978,
>as amended, that you feel apply.
Well, lets assume we can stipulate that the rudiments of library linking
being potential infringement might not have been tested, but have not be
negated either. How are we to interpret the law to the extent you
request without laborious examination of the rather extensive set of
software proposed by the example? I feel that you are applying
misdirection to prevent elaboration and suppress free inquiry. You are
supposed to be the expert here; rather than hand-waving or arm-waving or
whatever it is you are doing, why don't you provide some context from
the Copyright Act of 1978 and related and subsequent precedent which we
might or might not find applicable to the discussion?
--
T. Max Devlin
Manager of Research & Educational Services
Managed Services
ELTRAX Technology Services Group
[EMAIL PROTECTED]
-[Opinions expressed are my own; everyone else, including
my employer, has to pay for them, subject to
applicable licensing agreement]-
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