Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Stefaan A Eeckels wrote:
[...]
>It is indeed the opionion of
> the FSF that any form of linking (static, dynamic, or whatever
> technology brings us next) makes the resulting binary a
> derivative work of both programs. While this is perfectly
> true in case of static linking, 

This is perfectly false in case of static linking as well. The 
distiction between derivative works and compilations is not that
hard to grasp. Statically linked executable is a mere aggregation 
of a bunch of preexisting works. It is the same as an archive 
containing same bunch of dynamically linked components.

> where the binary contains
> transformations of both programs, it is far less clear that

What "transformations" are you talking about? Software is protected 
as literary works and binary form is equivalent of source code as 
far as copyright law is concerned.

As for FSF's FAQ/"legal notes"/etc., that silly stuff reflects the 
state of affairs in the GNU Republic only... where "free" means 
"free as in bombs":

http://www.fsf.org/blogs/licensing/freeasinbombs

regards,
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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> It is just when you are distributing the product that you have to GPL
> the complete product as distributed.  Internal use is ok.

Ditribution is OK as well. 17 USC 109 (doctrine of copyright misuse 
aside for a moment), stupid.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Henrik S. Hansen" wrote:
[...]
> A quote from the GPL FAQ (http://www.gnu.org/licenses/gpl-faq.html):
> 
> Q: You have a GPL'ed program that I'd like to link with my code to build
>a proprietary program. Does the fact that I link with your program
>mean I have to GPL my program?
> 
> A: Yes.

Voicing such demands is a sure way to become copyright impotent 
(court imposed penalty for copyright misuse), #1702.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> Already out of arguments so that you need to resort to insults?  You
> know that "compilation" in computer science and in law are two
> _entirely_ different things.

I meant "compilation" as in German term Sammelwerk, stupid. 

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> Which does not cover _linking_. 

Copyright covers linking only in the GNU Republic.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote: ...

I knew you'll bite. That's why I've omitted "as such" and said just
linking, not "linking as such". It's just like the upcoming EU patent 
law harmonization directive and "software as such". Bwahahah.

Seriously, if A and B are independent works in the copyright sense
(as literary works), the fact that A "calls" B (references it) makes 
neither A nor aggregation A+B a derivative work of B. It's a mere
aggregation (Sammelwerk), not a derivative work (Bearbeitung). 

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Henrik S. Hansen" wrote:
> 
> Stefaan A Eeckels <[EMAIL PROTECTED]> writes:
> 
> > The answers in the GPL FAQ are the opinion of the FSF's
> > legal counsel (hopefully).
> 
> Right.  Which is an indicator that they have analysed the matters in
> depth, and that they have the competence to do so.

And what make you thing that "they" have the competence? 

http://www.google.de/groups?selm=41AF33E2.C7FA321E%40web.de

Hth.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> The courts happen to disagree with your assessment, as can easily be
> witnessed if you Google for "deep linking".  

Bah. Try deep googling.

>  And that is much less
> invasive than what needs to be done for linking computer programs.

Bah bah. Sez who?

> 
> As usual, your legal advice

Bah bah bah. And what makes you think that my opinions and information
you get from me constitutes legal advice?

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Stefaan A Eeckels wrote:
[...]
> You see, there's no mention of POSIX or "being needed to make
> the program work". I think one can reasonably say that a statically
> linked executable is covered by "any other form in which a work
> may be recast, transformed or adapted" as far as its components
> are concerned. 

Bzzt. According to the FSF, "static linking creates a derivative work 
through textual copying". By that silly logic, even if you have 
permission to reproduce something, you just can't prepare compilations
(hint: newspapers, catalogs, etc.) unless you also have permission to 
prepare derivative works.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Alfred M. Szmidt" wrote:
[...]
> I asked you in private if you could provide decent arguments against
> why you consider the "GNU GPL void", but you couldn't even provide
> anything to my inquiry.  

I don't recall receiving any private messages from you. You're a 
victim of my spam filtering, I'm afraid.   

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Alfred M. Szmidt" wrote:
> 
>I don't recall receiving any private messages from you. You're a
>victim of my spam filtering, I'm afraid.
> 
> That is hard to belive, since you answered one message and ignored the
> other.  

I answered your public message on usenet (group gnu.misc.discuss; see
the headers). I'm not subscribed to the mailing list. 

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> So why are there numerous court decisions that "deep linking" of web
> site material constitutes copyright infringement?


Deep Linking: Legal Certainty in Germany While Debate Continues in the 
United States 
September 11, 2003

With a recent decision, the German Federal Court of Justice (BGH) 
(decision of July 17, 2003, file no. I ZR 259/00) finally resolved the 
controversy about the lawfulness of deep linking under German law. 
Previously, some German courts considered such practice to be lawful 
and others did not (see our Internet Alert of October 3, 2002). The 
courts which rejected this practice considered deep linking to be a 
violation of the data base rights of the website owner according to 
Section 87 b German Copyright Act (UrhG), which implemented the 
provisions of Directive 96/9/EC, the so-called Directive on the Legal 
Protection of Databases.

In the BGH case, the plaintiff, which publishes the newspaper 
"Handelsblatt," the magazine "DMEuro" and online versions of those 
publications, sued the Internet search engine paperboy.de, which 
analyzes a broad range of newspaper articles and provides deep links 
to those articles. The plaintiff took the view that paperboy's deep 
linking violated its copyrights in the articles and its database, 
and also violated Section 1 of the German Act against Unfair 
Competition (UWG).

The Higher Regional Court Cologne dismissed the plaintiff's claim, and 
with its recent decision the BGH has now dismissed a further appeal by 
the plaintiff. According to the BGH, hyperlinking is not a use that can 
be reserved to the copyright or data-bank owner. Such linking is not 
unlawful, even if it enables the user to directly access a work product 
through a deep link. An owner who provides public access to a 
copyrighted work product on the Internet already facilitates its use by 
any Internet user. Even without a deep link, a user could directly get 
to the publicly accessible work product or data with the appropriate 
URL address. Thus, the deep link is just facilitating such access.

In addition, the BGH did not consider deep linking to be an unlawful 
exploitation of the work of the plaintiff (Section 1 UWG). Users were 
not misled about the origin of the newspaper and magazine articles. The 
fact that the owner of the Internet site may lose some advertising 
revenues (because the user bypasses the home page and other pages) did 
not create a violation of Section 1 UWG. Without deep linking, the BGH 
believed that it would be practically impossible to make sensible use 
of the overwhelming amount of information on the Internet.

The BGH has not opined about situations in which a deep link bypasses 
technical protection measures intended to limit access information.

However, with the exception of these issues and other particular 
circumstances, deep linking is now considered to be lawful under German 
law.
--

> David Kastrup, Kriemhildstr. 15, 44793 Bochum

GNU Republic or Germany, dak?

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> People that are clamoring against the consequences of the GPL are
> clamoring against the consequences of copyright laws. 

For the record, I'm against consequences of the "GNU copyright laws" 
which is nothing but perverse parody having little to no connection 
with reality of actual copyright laws and public policy behind 
copyright.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Alfred M. Szmidt" wrote:
> 
>>I don't recall receiving any private messages from you. You're
>>a victim of my spam filtering, I'm afraid.
>>
>> That is hard to belive, since you answered one message and
>> ignored the other.
> 
>I answered your public message on usenet (group gnu.misc.discuss;
>see the headers). I'm not subscribed to the mailing list.
> 
> First of all, I was refering to the _private_ messages, 

Several years ago?

> nothing to do with the recent messages that I have sent to the 
> mailing list.

I've just checked and found a cc copy of your latest message (the one
quoted above and below) residing in trash apartment in my web.de 
mailbox. 

Stop it. 

Global warming, you know. 

> Second, this is a mailinglist, not a newsgroup.  That you happen to
> read it using a news client is totally irrelevant.

My mailbox has rather aggressive spam filter. I don't use any filtering 
for usenet. Got it now?

regards,
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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Alfred M. Szmidt" wrote:



Newsgroups: gnu.misc.discuss
  Approved: gnu-misc-discuss@gnu.org
CC: gnu-misc-discuss@gnu.org
To: [EMAIL PROTECTED]
^^^



Stop bombarding my mailbox, stupid. One more time and I'll plonk you
in my newsreader as well.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Alfred M. Szmidt" wrote:
[...]
> [0]: Many projects, specially system parts of GNU, have special
> clauses or use the Lesser GPL to allow mixing with non-free software.

Tell me how does that work. Say on hurd (which doesn't have Linus'
"exception" to the GPL'd kernel). On what basis are all those 
projects allowed to wrap GPL'd stuff with lesser silliness (to allow 
mixing without contamination) and what's your problem with someone 
doing the same but with respect to non-kernel GPL'd component(s).

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Alfred M. Szmidt" wrote:
> 
>Stop bombarding my mailbox, stupid.
> 
> You are reading a mailing list

Geez. Visit a clinic. Yes, you're reading a mailing list. I'm reading 
and replying on newsgroup.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Martin Dickopp wrote:
[...]
> a derivative work of the program and a particular C library is 
> created the moment the program is run 

And who gets the copyright on that "derivative work"? And what
new protected elements does it cover?

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Wahaj" <[EMAIL PROTECTED]> wrote:

[... "single program" ...]

Ignore it. This term has now meaning in the context of the GPL and 
copyright law. It is just yet another example of FSF's "mirrors and 
smoke" bluffing technique.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Alexander Terekhov wrote:
> 
> "Wahaj" <[EMAIL PROTECTED]> wrote:
> 
> [... "single program" ...]
> 
> Ignore it. This term has now meaning in the context of the GPL and
   ^^^

Sorry, "no", not "now". Meaningless term.

> copyright law. It is just yet another example of FSF's "mirrors and
> smoke" bluffing technique.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Martin Dickopp wrote:
> 
> Alexander Terekhov <[EMAIL PROTECTED]> writes:
> 
> > Martin Dickopp wrote:
> > [...]
> >> a derivative work of the program and a particular C library is
> >> created the moment the program is run
> >
> > And who gets the copyright on that "derivative work"?
> 
> The copyright holders of the program and the library.

ROFL. I thought that sysadmin will share it with computer. ;-) 

Ok, next question. And what creative undertaking in the creation (the 
moment the program is run) of that "derivative work" can be attributed 
to the copyright holders of the program and/or the library? Suppose 
that both their preexisting copyrights happen to expire the moment the 
program is run... who gets the copyright on that "derivative work"?

regards,
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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> Suppose the Earth consists of constaneously combusting pink
> cheese...  

Okay. And your question is?

>   and _you_, of all people, call others "stupid" frequently.

My questions were meant to highlight absurdity in your org's line of 
reasoning, genius.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Martin Dickopp wrote: ...

Suppose that preexisting material (both program and library) is in 
public domain by the time the program is run. So once again, who gets 
the copyright on that "derivative work" and what expression (as in 
literary works modulo AFC test) does it protect in that "derivative 
work"? 


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 existing 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 preexisting material.


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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Martin Dickopp wrote:
[...]
> I have no idea what you're aiming at. 

I'm not surprised.

>If the works of A and B are
> combined to form a derivative work by an entity C, and the act of

Combined as in what? Can you print two different stories (bought
electronically) on the same sheet of paper (to form a combined 
printout) or not? Printing them in one pass is certainly illegal
in the GNU Republic... unless you happen to be entitled with a
privilege to prepare derivative works of both and they both came 
to you under "compatible" licenses, right?

> creating the derivative work is not creative enough to be copyrightable
> (as in the case of running a dynamically linked program, for example),
> then C gains no copyright of the derivative work. 

Turn on your brain and try 

http://www.google.de/groups?selm=40EC0D4F.933878A%40web.de

Hth.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> > Combined as in what? Can you print two different stories (bought
> > electronically) on the same sheet of paper (to form a combined
> > printout) or not?
> 
> That certainly falls under fair use _unless_ you choose to
> redistribute them again.  For that you need a licence.

17 USC 109 (known as "copyright exhaustion" in Europe), stupid.

I have all the rights to sell/dispose that sheet of paper. 

Heck, according to

http://arbiter.wipo.int/domains/panel/profiles/hoeren.pdf
(Judge, Court of Appeal of Dusseldorf (Copyright Senate), etc.)

even "contractual limitation of this principle is held to be invalid" 
in Germany, my GNU friend.

http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf

"The European Software Directive has provided that the exhaustion 
 of the copy of a program is applied Community-wide by a first sale 
 of that copy in the Community with the consent of the right-holder; 
 once an author has sold a copy of a work, he or she loses the 
 exclusive distribution right with respect to that work. A 
 contractual limitation of this principle is held to be invalid, at 
 least in Germany and Austria."

Oh, Ah, BTW, 

http://groups.google.de/groups?selm=41B063A6.FB9A7B6B%40web.de
http://groups.google.de/groups?selm=41B09B5B.CE0D29FB%40web.de

it went for EURO 6.50 on ebay a couple of weeks ago.

http://cgi.ebay.de/ws/eBayISAPI.dll?ViewItem&item=7133325141

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Martin Dickopp wrote:
[...]
> > Combined as in what? Can you print two different stories (bought
> > electronically) on the same sheet of paper (to form a combined
> > printout) or not?
> 
> Since I never claimed that a combination of two works is /always/ a
> derivative of one or both original works (in fact, I claimed the exact
> opposite just a few hours ago in this very newsgroup), your example
> is rather silly and not at all related to the discussion at hand.

I see. So combined "stories" are OK (never mind that one can reference 
the other one and that that stuff is also in binary form) with respect
to lack of derivation under copyright law, but combined programs 
(protected as literary works by definition) are somehow not OK, or at 
least not always OK. Very interesting.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Alfred M. Szmidt" wrote:
> 
>Geez. Visit a clinic.
> 
> Are you this silly that you cannot even produce one message without
> having to resort to personal attacks?
> 
>Yes, you're reading a mailing list. I'm reading and replying on
>newsgroup.
> 
> And I'm replying to a mailing list.

Reply to mailing list *only*, *&^%(&%^$^*%$*.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote: 
[...]
> You are confusing fair use with redistribution.  

http://digital-law-online.info/lpdi1.0/treatise-toc.html

Hth.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

"Alfred M. Szmidt" wrote:
> 
>Reply to mailing list *only*
> 
> No, I won't treat you any differently then anyone else on this list.

Plonk.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
[...]
> When you are reading a mailing list gated to a Usenet group, there is
> no way that anybody can answer "to mailing list only".

Wanna also be plonked? Don't disappoint me.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

David Kastrup wrote:
> 
> Alexander Terekhov <[EMAIL PROTECTED]> writes:
> 
> > David Kastrup wrote:
> > [...]
> >> When you are reading a mailing list gated to a Usenet group, there is
> >> no way that anybody can answer "to mailing list only".
> >
> > Wanna also be plonked? Don't disappoint me.
> 
> I'd very much appreciate it. 

Done.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Stefaan A Eeckels wrote:
[...]
> is not a derivative of the standard 'C' library, but that the
> copy that is created at run time in memory is a derivative
> work of both the source code and the standard 'C' library
> (or for Alex, a compilation, but that doesn't matter because
> the same protections are extended to compilations as to
> derivative works).

Copyright law doesn't establish exclusive right to prepare 
compilations (in addition to exclusive right to prepare derivative 
works). The term compilation doesn't include derivative works. So
it does matter. 

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Martin Dickopp wrote:
[...]
>  101 USC 17 defines a derivative work as
> "a work based upon one or more preexisting works." 

... in which a work may be recast, transformed, or adapted."
   ^^^

is the governing part of the US definition because all works are 
based upon one or more preexisting works in a metaphysical sense.

---
Paramount Pictures Corp. v.
Video Broadcasting Systems, Inc

The case comes before the court on the plaintiff's motion for a 
preliminary injunction.

[...]

Plaintiff seeks to enjoin generally defendants from altering Paramount 
videocassettes by the addition of unauthorized advertisements, from 
creating and distributing derivative works from works in which 
plaintiff owns or is the exclusive licensee of the copyright, from 
interfering with plaintiff's prospective contractual relations for 
authorized advertisements, and from "shipping, delivering, holding for 
sale, distributing, returning, transferring, or otherwise moving or 
disposing of in any manner" videocassettes protected by plaintiff's 
copyright which have been altered by defendants prior to rental or 
sale. 

[...]

Plaintiff next claims that by adding the advertisements to the 
videocassette the defendants have created unauthorized derivative 
works. The Copyright Act defines a derivative work as 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 will be considered a derivative work only if it would be 
considered an infringing work if the material which it has derived 
from a preexisting work had been taken without the consent of a 
copyright proprietor of such preexisting work. The plaintiff has 
not presented any authority to support the conclusion that the mere 
addition of a commercial to the front of a videocassette recasts, 
transforms, or adapts the motion picture into what could represent 
an "original work of authorship." 

[... silly opinions in Mirage and Midway ignored ...]

While defendants' advertisement is an original work, the court does 
not recognize the addition of it to a videocassette in any way 
recasting, transforming or adapting the motion picture. The result 
is not a new version of the motion picture. 

Plaintiff's final copyright claim is the unlawful distribution of 
mutilated versions or derivative works. This claim depends upon the 
success of either of the prior two claims regarding mutilation of a 
copyrighted work or the preparation of a derivative work. Since the 
court has found little likelihood of success on both of these claims, 
the distribution claim also fails to carry the day. Furthermore, in 
the absence of a derivative work [READ: in the absence of derivative 
work prepared without permission], the plaintiff's distribution claim 
is barred by the first sale doctrine which provides that when a 
copyright owner parts with title to a particular copy of his 
copyrighted work, he divests himself of his exclusive right to vend 
that particular copy. Plaintiff has not shown a substantial 
likelihood of success on any of its copyright claims. 

Plaintiff's motion for a preliminary injunction is denied.


Literary works (computer programs) are no different in this respect.

You only have to be "the owner of a particular copy or phonorecord 
lawfully made." 17 USC 109. A copy is "lawfully made" if it is made 
by the copyright owner, made with the authorization of the copyright 
owner (copies made under exceptions to the copyright owner's 
exclusive rights aside of a moment).

The test for first sale is not whether Video Broadcasting Systems, 
Inc. "acquired preexisting videocasettes" but whether the copies VBS 
owned were lawfully made (e.g. with the authorization of the 
copyright owner). And all copies of GPL'd works are "lawfully made"
thanks to the unilateral permission to reproduce.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Martin Dickopp wrote:
[...]
> trying to circumvent the library license, ...

Exercising the (distribution) right that owners of "copies" (in the
sense of 17 USC 101) enjoy under copyright law (which the GPL purports 
to follow but actually blatantly misstates) is not a "circumvention". 
There are a whole bunch of misstatements of the copyright law in the 
GPL. The first is that "nothing else grants you permission to modify... 
the Program."

17 USC 117(a) does grant that permission in a special, but important 
instance.

There is nothing in the GPL that says that a person is not the "owner 
of a copy" of the program. So, as long as the adaptation (modification) 
is "an essential step in the utilization of the computer program in
conjunction with a machine" it is permitted without the GPL.

The second is that "nothing else grants you permission to ... 
distribute the program."

17 USC 109(a) states that:

Notwithstanding the provisions of section 106 (3), the owner of a 
particular copy or phonorecord lawfully made under this title, or 
any person authorized by such owner, is entitled, without the 
authority of the copyright owner, to sell or otherwise dispose of 
the possession of that copy or phonorecord.

According to

http://arbiter.wipo.int/domains/panel/profiles/hoeren.pdf
(Judge, Court of Appeal of Dusseldorf (Copyright Senate), etc.)

"contractual limitation of this principle is held to be invalid" in 
Germany.

http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf

"The European Software Directive has provided that the exhaustion 
 of the copy of a program is applied Community-wide by a first sale 
 of that copy in the Community with the consent of the right-holder; 
 once an author has sold a copy of a work, he or she loses the 
 exclusive distribution right with respect to that work. A 
 contractual limitation of this principle is held to be invalid, 
 at least in Germany and Austria.

 [...]

 If somebody offers software on the Internet for downloading and 
 links the download with invalid general terms, he can hardly sue 
 for copyright infringement. Instead, the validity of the standard 
 terms is a matter for the software distributor: if he wants to use 
 invalid contractual terms, he bears the risk of their use."

As for the US, < Forward Inline >

 Original Message 
Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch
Subject: Re: Stallman rants about FreeBIOS
Message-ID: <[EMAIL PROTECTED]>
References: ... <[EMAIL PROTECTED]>

Bernd Paysan wrote:
[...]
> But if you need a secret key to make (working) modifications to the program,
> you have to include it, or at least have an instance that does sign
> whatever modified binary (or hash) you send them.

According to the FSF, the GPL is not a contract.

Under copyright law one just can't restrict distribution of copies 
(material objects) lawfully made. Electronic distribution implies 
reproduction, but that right is also granted unilaterally to 
everybody-and-his-dog by the GPL licensors. So all "copies" (17 USC 
101) incorporating publicly available GPL'd works (and their 
derivative works lawfully prepared and incorporated in "copies" 
thanks the GPL unilateral grant, *not* restricted adaptation right 
under 17 USC 117) are "lawfully made" and can be distributed as 
their owners see fit notwithstanding purported "must be free" 
restrictions stated in the GPL. That's because distribution of 
copies lawfully made doesn't require permission of the copyright 
proprietors. RedHat's lawyers simply erred in thinking that current 
codification of "first sale" doctrine (17 USC 109) needs amendments
(formally codifying "digital first sale"... and as a byproduct, also 
clearly stating legality of teleportation*** of books and etc. ;-) ) 
to break the GPL. The GPL is already totally broken.

< quotes from dmca/sec-104-report-vol-<2|3>.pdf >

Red Hat, Inc.:

  Let me just clarify that I don't think anyone today intends to 
  impact our licensing practices. I haven't seen anything in the 
  comments, nor have I heard anything today that makes me think 
  someone does have that intention. What we're concerned about 
  are unintended consequences of any amendments to Section 109. 
  The primary difference between digital and nondigital products 
  with respect to Section 109 is that the former are frequently 
  licensed. ... product is also available for free downloaded 
  from the Internet without the printed documentation, without 
  the box, and without the installation service. Many open source 
  and free software products also embody the concept of copyleft. 
  ... We are asking that amendments not be recommended that would 
  jeopardize the ability of open source and free software 
  licensor to require [blah blah]

Time Warner, Inc.:

  We note that the initial downloading of a copy, from an 
  authorized source to a purchaser's computer, can result in 
  lawful ownership of a copy stored in a tangible medium.

Library

Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

< Part II >

Alexander Terekhov wrote:
[...]
> As for the US, < Forward Inline >
> 
>  Original Message 
> Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch
> Subject: Re: Stallman rants about FreeBIOS
> Message-ID: <[EMAIL PROTECTED]>
> References: ... <[EMAIL PROTECTED]>

[... why the GPL just can't work under copyright law ...]

Just in case you'll come across an idiot proclaiming that the GPL
works as an "agreement" (apart from Germany... where contractual 
limitation of first sale principle is held to be invalid)... well,
research the topic of enforceability of "contracts of adhesion" and 
contracts in general yourself. Here's some hints, so to speak.  

< 2 x Forward Inline >

 Original Message 
Message-ID: <[EMAIL PROTECTED]>
Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch
Subject: Re: Stallman rants about FreeBIOS
References: ... <[EMAIL PROTECTED]>

Bernd Paysan wrote:
[...]
> if the terms are accepted. 

The GPL is a bare copyright license, not a contract. It merely 
misstates the law (go read both 17 USC 109 and 17 USC 117 to begin 
with) and just can't legally compel you to relinquish rights that 
you enjoy under copyright law (or any other rights; in contrast 
to other contractual OSS licenses*** written by real IP lawyers, 
not some obsessive and oppressive lunatic with the help of a law 
historian fond of spreading anti-copyright-and-patent anarchistic 
propaganda).

http://tinyurl.com/3c2n2>

Adobe characterizes each transaction throughout the entire stream 
of commerce as a license.8 Adobe asserts that its license defines 
the relationship between Adobe and any third-party such that a 
breach of the license constitutes copyright infringement. This 
assertion is not accurate because copyright law in fact provides 
certain rights to owners of a particular copy. This grant of rights 
is independent from any purported grant of rights from Adobe. 



s/Abobe/FSF

See also

http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF
(Specht v. Netscape Communications Corp.)

Furthermore, FSF's expansive claims (just like SCO's -- see Tenth 
IBM's defense) are barred by the doctrine of copyright misuse.



Even if the open source license [GPL] is binding, the copyleft 
provision may still not be enforceable as to independent 
proprietary code, in light of the intellectual property misuse 
doctrine. The doctrine is asserted as an affirmative defense to 
an intellectual property infringement claim. Much like an unclean 
hands defense, the misuse doctrine precludes enforcement of 
intellectual property rights that have been extended beyond the 
scope of those rights. 

[...]

A successful misuse defense bars the misuser from prevailing 
against anyone on an action for infringement of the misused 
intellectual property, even against defendants who have not been 
harmed or affected by the misuse.[76]

The misuse doctrine was judicially created, first in the patent 
context. Only recently has the misuse doctrine been extended to 
copyrights, building on the rich misuse history in the patent 
law.[77] Importantly, most courts have found misuse without 
requiring a finding of antitrust liability.[78] Thus, market 
power is unnecessary, as is any analysis of the competitive and 
anticompetitive impacts of the provision.[79]

The courts have yet to analyze a copyleft provision for misuse, 
but the courts have addressed an analogous provision—the 
grantback. A grantback provision requires that a licensee of 
intellectual property grant back to the licensor a license or 
ownership in creations made by the licensee. The typical 
grantback provision requires that the licensee give the licensor 
a nonexclusive license to any improvements or derivatives that 
the licensee creates based on the original licensed property. The 
idea is that the licensee would not have been able to make the 
improvement or derivative without permission of the licensor or 
at least access to the original; thus, the licensor should not 
be blocked by an improvement or derivative he and his 
intellectual property helped create. Giving the license back 
encourages licensors to license, since it mitigates the risk of 
becoming blocked by derivative intellectual property. Like a 
grantback, copyleft requires the licensee to license back its 
improvements. The copyleft provision is more expansive, though. 

[...]

Although grantbacks have not come up in the copyright misuse 
arena, they have in the patent context—and as we have seen, the 
patent misuse cases form the underpinning for the copyright 
misuse doctrine. Courts have found that grantback clauses 
extending to improvements are not misuse, because the licensee 
in some sense developed the improvement with the help of the 
original patent. Where grantback clauses extend to preexisting 
or unrelated patents, however, 

Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Martin Dickopp wrote:
[...]
> I use only Free Software, 

Keep dreaming.

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Re: GPL question

[Alexander Terekhov]

"Nicholas R. Markham" wrote:
> 
> I have a program that I'd like to utilize the GNU Scientific Library.
> Since the GSL is distributed under the GPL (not the LGPL), this means I
> would have to distribute my program under the GPL as well. 

Not at all. 

To begin with, I suggest you read "Open Source Licensing: Software Freedom 
and Intellectual Property Law"  by 
. Here's a "sample chapter" (on the GPL):

http://www.phptr.com/content/images/0131487876/samplechapter/0131487876_ch06.pdf

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Re: GPL question

[Alexander Terekhov]

"Nicholas R. Markham" wrote:
[...]
> A FAQ at http://www.gnu.org/licenses/gpl-faq.html#IfLibraryIsGPL:
> 
> Q: If a library is released under the GPL (not the LGPL), does that mean
> that any program which uses it has to be under the GPL?
> 
> A: Yes, because the program as it is actually run includes the library.

The "program" as it is actually run "includes" not only "the library" 
but also machine language implementation (microcode, etc.), firmware 
stuff, a lot of interesting stuff used to produce electricity at nearby 
power station, and so forth.

To put it simple, the FSF's FAQ is nothing but an idiot test. 

"A: Yes" above gives you 100 percent rating.

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Re: GPL question

[Alexander Terekhov]

John Hasler wrote:
> 
> Nicholas R. Markham writes:
> > It certainly appears that I would have to distribute the program under
> > the GPL, or not distribute it at all.
> 
> You must distribute the program that is linked to the GPL library under the
> GPL. 

You must not.
 
>  The other programs are unaffected as distributing them together with
> the GPL one is mere aggregation and allowed by the GPL.

Markham, your program IS "the other program" under copyright law. You 
can mere aggregate it together with the GPl'd "library" program in one 
executable/ditro/ISO-image/file-system/archive/medium/whatnot.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Martin Dickopp wrote:
[...]
> You can read about the position of the FSF here:
> 
>   http://www.gnu.org/licenses/gpl-faq.html#MereAggregation

Software is protected as *literary* works by definition. "Mechanism 
of communication" and "the semantics of the communication" are totally
irrelevant. There's nothing here that "ultimately judges will decide."

Combining == mere aggregating. 

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Isaac wrote:
[...]
> For static linked works, the diference between a derivative work and
> a collective work is usually meaningless because distribution requires the
> distributing the library.  

17 USC 109.

>   But the difference is critical if the two
> joined works are to be distributed separately.

Separately as in what? Separate CDs? Separate boxes? Separate trucks?

The GPL doesn't cover "mere aggregations". End of story. Case closed.

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Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

Isaac wrote:

[... IPC ...]

> I don't think that makes a lot of sense from a copyright law 
> standpoint.

It makes as much sense as this silliness:

http://web.novalis.org/talks/compliance-for-developers/slide-49.html

[begin textual copying]

July 27, 2004 GPL Compliance for Software Developers Legal notes 


Legal notes

Static linking creates a derivative work through textual copying

Most dynamic linking cases involve distributing the library

Still a derivative work:

Dynamic linking

Distributing only the executable (testtriangle)

Still a derivative work:

Distributing the source code of software which links to a library

when that library is the only software to provide that interface

-
Copyright © 2004, Free Software Foundation. Verbatim copying 
permitted provided this notice is preserved. 

[end textual copying]

Tough law they have over there in the GNU Republic, so to speak.

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REPOST: Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

< Part II >

Alexander Terekhov wrote:
[...]
> As for the US, < Forward Inline >
> 
>  Original Message 
> Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch
> Subject: Re: Stallman rants about FreeBIOS
> Message-ID: <[EMAIL PROTECTED]>
> References: ... <[EMAIL PROTECTED]>

[... why the GPL just can't work under copyright law ...]

Just in case you'll come across an idiot proclaiming that the GPL
works as an "agreement" (apart from Germany... where contractual 
limitation of first sale principle is held to be invalid)... well,
research the topic of enforceability of "contracts of adhesion" and 
contracts in general yourself. Here's some hints, so to speak.  

< 2 x Forward Inline >

 Original Message 
Message-ID: <[EMAIL PROTECTED]>
Newsgroups: comp.sys.ibm.pc.hardware.chips,comp.arch
Subject: Re: Stallman rants about FreeBIOS
References: ... <[EMAIL PROTECTED]>

Bernd Paysan wrote:
[...]
> if the terms are accepted. 

The GPL is a bare copyright license, not a contract. It merely 
misstates the law (go read both 17 USC 109 and 17 USC 117 to begin 
with) and just can't legally compel you to relinquish rights that 
you enjoy under copyright law (or any other rights; in contrast 
to other contractual OSS licenses*** written by real IP lawyers, 
not some obsessive and oppressive lunatic with the help of a law 
historian fond of spreading anti-copyright-and-patent anarchistic 
propaganda).

http://tinyurl.com/3c2n2>

Adobe characterizes each transaction throughout the entire stream 
of commerce as a license.8 Adobe asserts that its license defines 
the relationship between Adobe and any third-party such that a 
breach of the license constitutes copyright infringement. This 
assertion is not accurate because copyright law in fact provides 
certain rights to owners of a particular copy. This grant of rights 
is independent from any purported grant of rights from Adobe. 



s/Abobe/FSF

See also

http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF
(Specht v. Netscape Communications Corp.)

Furthermore, FSF's expansive claims (just like SCO's -- see Tenth 
IBM's defense) are barred by the doctrine of copyright misuse.



Even if the open source license [GPL] is binding, the copyleft 
provision may still not be enforceable as to independent 
proprietary code, in light of the intellectual property misuse 
doctrine. The doctrine is asserted as an affirmative defense to 
an intellectual property infringement claim. Much like an unclean 
hands defense, the misuse doctrine precludes enforcement of 
intellectual property rights that have been extended beyond the 
scope of those rights. 

[...]

A successful misuse defense bars the misuser from prevailing 
against anyone on an action for infringement of the misused 
intellectual property, even against defendants who have not been 
harmed or affected by the misuse.[76]

The misuse doctrine was judicially created, first in the patent 
context. Only recently has the misuse doctrine been extended to 
copyrights, building on the rich misuse history in the patent 
law.[77] Importantly, most courts have found misuse without 
requiring a finding of antitrust liability.[78] Thus, market 
power is unnecessary, as is any analysis of the competitive and 
anticompetitive impacts of the provision.[79]

The courts have yet to analyze a copyleft provision for misuse, 
but the courts have addressed an analogous provision—the 
grantback. A grantback provision requires that a licensee of 
intellectual property grant back to the licensor a license or 
ownership in creations made by the licensee. The typical 
grantback provision requires that the licensee give the licensor 
a nonexclusive license to any improvements or derivatives that 
the licensee creates based on the original licensed property. The 
idea is that the licensee would not have been able to make the 
improvement or derivative without permission of the licensor or 
at least access to the original; thus, the licensor should not 
be blocked by an improvement or derivative he and his 
intellectual property helped create. Giving the license back 
encourages licensors to license, since it mitigates the risk of 
becoming blocked by derivative intellectual property. Like a 
grantback, copyleft requires the licensee to license back its 
improvements. The copyleft provision is more expansive, though. 

[...]

Although grantbacks have not come up in the copyright misuse 
arena, they have in the patent context—and as we have seen, the 
patent misuse cases form the underpinning for the copyright 
misuse doctrine. Courts have found that grantback clauses 
extending to improvements are not misuse, because the licensee 
in some sense developed the improvement with the help of the 
original patent. Where grantback clauses extend to preexisting 
or unrelated patents, however, 

Re: using GPL api to be used in a properietary software

[Alexander Terekhov]

< for the sake of linking-back in future >

Isaac wrote:
> 
> On Mon, 14 Mar 2005 12:12:29 +0100, Martin Dickopp
> <[EMAIL PROTECTED]> wrote:
> >
> > That depends on how the program has been created and other details. If a
> > program uses the ISO-standardized C library API, and uses no components
> > of a particular C library while it is being created, then a derivative
> > work of the program and a particular C library is created the moment the
> > program is run (and therefore linked with the library). But I can also
> > imagine different circumstances under which a derivative work is already
> > created when the programm is written.
> 
> Taking two works and pasting them together does not create a derivative
> work, but instead creates some kind of compilation, most likely
> a collective work.  If there is no recasting, transforming or adaptation
> of the original work, then I don't think the result fits the statutory
> definition.
> 
> However a collective work is separate combinations collected into a
> whole which seems to accurately describe linking to a library for at
> least some linking technologies.
> 
> For static linked works, the diference between a derivative work and
> a collective work is usually meaningless because distribution requires the
> distributing the library.  But the difference is critical if the two
> joined works are to be distributed separately.

Distribution under "first sale" aside for a moment, here's a nice
explanation highlighting some other differences regarding 
compilations and derivative works.


HOUSE REPORT NO. 94-1476

Section 103 complements section 102: A compilation or derivative 
work is copyrightable if it represents an ''original work of 
authorship'' and falls within one or more of the categories listed 
in section 102. Read together, the two sections make plain that 
the criteria of copyrightable subject matter stated in section 102 
apply with full force to works that are entirely original and to 
those containing preexisting material. Section 103(b) is also 
intended to define, more sharply and clearly than does section 7 
of the present law (section 7 of former title 17), the important 
interrelationship and correlation between protection of preexisting 
and of ''new'' material in a particular work. The most important 
point here is one that is commonly misunderstood today: copyright 
in a ''new version'' covers only the material added by the later 
author, and has no effect one way or the other on the copyright or 
public domain status of the preexisting material.

Between them the terms ''compilations'' and ''derivative works'' 
which are defined in section 101 comprehend every copyrightable 
work that employs preexisting material or data of any kind. There 
is necessarily some overlapping between the two, but they basically 
represent different concepts. A ''compilation'' results from a 
process of selecting, bringing together, organizing, and arranging 
previously existing material of all kinds, regardless of whether 
the individual items in the material have been or ever could have 
been subject to copyright. A ''derivative work,'' on the other 
hand, requires a process of recasting, transforming, or adapting 
''one or more preexisting works''; the ''preexisting work'' must 
come within the general subject matter of copyright set forth in 
section 102, regardless of whether it is or was ever copyrighted.

The second part of the sentence that makes up section 103(a) 
deals with the status of a compilation or derivative work 
unlawfully employing preexisting copyrighted material. In 
providing that protection does not extend to ''any part of the 
work in which such material has been used unlawfully,'' the bill 
prevents an infringer from benefiting, through copyright 
protection, from committing an unlawful act, but preserves 
protection for those parts of the work that do not employ the 
preexisting work. Thus, an unauthorized translation of a novel 
could not be copyrighted at all, but the owner of copyright in 
an anthology of poetry could sue someone who infringed the whole 
anthology, even though the infringer proves that publication of 
one of the poems was unauthorized. 


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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Yes.

Mike Linksvayer wrote:
[...]
> I did a quick scan through
> http://www.gnu.org/philosophy/license-list.html but didn't see an
> exactly comparable license.

And what you see there isn't true either. Apart from the GNU Republic,
compilations can't be infected by the GPL. And derivative works under
copyright law (not GNU copyright law), fall under the GPL and only 
the GPL. The concept of "GPL incompatibility" is an idiot test.

> 
> So, my question is in the subject line.

My answer is below it. As far as the GPL is concerned, everything 
is compatible with it. It might not be so under jursidiction of 
the GNU Republic (where only Mr President Stallman knows and rules
what is "compatible"), but who cares?

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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Rui Miguel Seabra wrote:
[...]
> Because those that have somewhat more insight, see that your arguments
> do not apply, because you're talking of a radically different concept
> (first sale doctrine) than (re)distribution as if they where the exact
> same thing.

They may well be radically different concepts under GNU Copyright 
Law (I know that you have much more insight regarding it than me). 

As for US CODE: Title 17, "(re)distribution" is nonexistent and 
"first sale" limitation on exclusive distribution right is quite 
real.

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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Rui Miguel Seabra wrote:
[...]
> But you can't MAKE COPIES of YOUR copy 

Sure I can. Work is GPL'd and publicly available. 

I admit making copies. What's the problem?

> and (re)DISTRIBUTE them unless you have distribution rights.

17 USC 109.

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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Rui Miguel Seabra wrote:
> 
> On Tue, 2005-04-12 at 16:40 +0200, Alexander Terekhov wrote:
> > Rui Miguel Seabra wrote:
> > [...]
> > > But you can't MAKE COPIES of YOUR copy
> >
> > Sure I can. Work is GPL'd and publicly available.
> >
> > I admit making copies. What's the problem?
> 
> Well, English 101: the phrase ends on the period.

See. No problem. Copies are lawfully made.

> 
> > > and (re)DISTRIBUTE them unless you have distribution rights.
> ^^^
> 
> ... which the GPL gives you under certain conditions only.

No, thank you. 17 USC 109 is good enough.

> 
> > 17 USC 109.
> 
> That's first sale, not (re)distribution of copies.

Read the code, stupid. "US CODE: Title 17", I mean.

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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Mike Linksvayer wrote:
> 
> Alexander Terekhov wrote:
>   >>So, my question is in the subject line.
> >
> > My answer is below it. As far as the GPL is concerned, everything
> > is compatible with it. It might not be so under jursidiction of
> > the GNU Republic (where only Mr President Stallman knows and rules
> > what is "compatible"), but who cares?
> 
> In this case, I do.  

Ok, let me play Mr. GNU President for you.

Adobe Open Source License

  a free software license, partially copyleft but not really, which 
  is incompatible with the GNU GPL because of details.

Happy now?

> Anyone from outside the Terekhov Republic, 

Imperium, please.

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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Martin Dickopp wrote:

[... "GPL incompatibility" ...]

Repost of the following April 1st joke (there's much truth in it) is 
called for.

Posted (not here) by Shlomi Fish on Monday April 01.


A recent press conference of the Free Software Foundation confirmed 
the rumors that the GNU General Public License was found to be 
incompatible with itself. This newly discovered fact may actually 
cause a lot of disorder in the free software world in which most 
programs and libraries are licensed under this license. 

Richard Stallman, chairman of the FSF, called upon developers to 
immediately exempt GPL-licensed software from the GPL, as far as 
linking them with GPL programs is concerned. "We have already made 
sure all GNU software and every other software that is licensed to 
the Free Software Foundation would be ad-hoc compatible with itself. 
However we need other developers to do the same for their software", 
Stallman said. 

Eben Moglen, the FSF's attorney outlined the subsequent steps that 
his organization will take to overcome this crisis. The first step 
would be releasing a Modified General Public License (or MGPL for 
short) that will be compatible with the GPL and with itself as well 
as with all other licenses that the GPL is already compatible with. 
It will be labeled the GPL version 2.1, thus allowing developers to 
convert their software to it. He noted that care would be taken to 
make sure the upcoming GPL version 3.0 will be compatible with 
itself, as well as the MGPL. 

For the time being, though, there is an explosion of commentary, 
confusion and otherwise bad temper about the newly formed situation. 
Eric S. Raymond, the famous Open Source Guru notes: "This is one of 
the greatest blows to the Open Source world, I have yet encountered. 
I have already exempted all of my own software from the GPL in this 
regard, but there is a lot of other software out there, and many of 
its authors are not very communicative. 

Bill Gates, Microsoft's co-founder, on the other hand, seems to 
find the situation very amusing: "I said times and again, that 
viral licenses such as the GPL are a bad idea, and many open-source 
advocates disagreed. Now they see that even making sure one's 
license is compatible with itself, is hard to do when you open that 
can of worms." 

The integrity of many software projects whose license is the GPL and 
yet contain works licensed by several developers is in jeopardy. The 
Linux kernel is a prominent example of such a case. In a post to its 
mailing list, Linus Torvalds commented that, in their case, it was 
not an issue. "My interpretation of the GPL is already quite unusual, 
so I'll simply rule that I also interpret the GPL as compatible with 
itself." 


regards,
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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Tim Smith wrote:
> 
> In article <[EMAIL PROTECTED]>, Alexander Terekhov wrote:
> > My answer is below it. As far as the GPL is concerned, everything is
> > compatible with it. It might not be so under jursidiction of the GNU
> > Republic (where only Mr President Stallman knows and rules what is
> > "compatible"), but who cares?
> 
> This makes no sense.  If I have some GPL'ed code and some code under license
> Foo, and I can combine them in a program in such a way that I can satisfy
> they terms of both GPL and Foo, then it makes sense to say they are
> compatible.  If I cannot do so, then it makes sense to say they are
> incompatible.

First sale aside for a moment, GPL is a bare copyright license. When
you merely "combine" works, you create compilations, not derivative
works. The former is also known as "mere aggregation." Got it now?

regards,
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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Rui Miguel Seabra wrote:
> 
> On Thu, 2005-04-21 at 10:57 +0200, Alexander Terekhov wrote:
> > First sale aside for a moment, GPL is a bare copyright license. When
> > you merely "combine" works, you create compilations, not derivative
> > works. The former is also known as "mere aggregation." Got it now?
> 
> Well, apart from the fact that there is no "combining" but combining,
> one should take in account that while in combining you are just
> combining, when you build upon an existing work (aka use a library)
> you're making a derivate.

In a metaphysical sense, all works are derivatives. But under 
copyright law (apart from the GNU Republic), exclusive right to 
prepare derivative works doesn't cover compilations. Go read the 
legal code, stupid.

regards,
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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Isaac wrote:
[...]
> Of course a compilation does not necessarily correspond to "mere aggregation"
> as described in the GPL, so the rest of Mr. T's argument may also be
> on shakey ground.

Oh c'mon, the GPL is not a contract and its "descriptions" are totally
irrelevant for that reason.

http://www.oslawblog.com/2004/11/gpl-and-compilations.html

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[Wallace v. FSF/GPL] Civil Complaint No. 1:05-cv-0618-JDT-TAB

[Alexander Terekhov]

http://linuxbusinessnews.sys-con.com/read/80782.htm

Does anyone have a link to the complaint? TIA.

regards,
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Re: [Wallace v. FSF/GPL] Civil Complaint No. 1:05-cv-0618-JDT-TAB

[Alexander Terekhov]

John Hasler wrote:
> 
> Alexander Terekhov writes:
> > Does anyone have a link to the complaint? TIA.
> 
> It's only available through PACER.  I'm sure it'll be on Groklaw soon.

Indeed. Now, PJ's trash talk aside for a moment, does anyone have a 
link to the amended complaint? ;-)

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Re: "Adobe Open Source License" GPL compatible?

[Alexander Terekhov]

Isaac wrote:
[...]
> don't agree with his conclusions involving first sale, 

Well,

http://lists.essential.org/upd-discuss/msg00137.html



The crucial point is that when we release a program under the GPL, 
we do not claim that all possessors of a copy have agreed to any 
contract with us.



Still don't agree?

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Re: [Wallace v. FSF/GPL] Civil Complaint No. 1:05-cv-0618-JDT-TAB

[Alexander Terekhov]

Rui Miguel Seabra wrote:

[... *BONK* ... *BONK*BONK* ...]

Well, 

 // Yet another Groklaw gadfly, so to speak

Wallace is just repeating what SCO claimed about IBM's Eight 
Counterclaim:

2. The GPL Should Not Be Read to Allow a Competitor to Regulate What 
May Be Charged for an Intellectual Property License

By arguing that SCO breached the GPL by collecting "royalties and 
licensing fees in excess of the fees permitted by the GPL," IBM Mem. 
at 14, IBM seeks in essence an interpretation that the GPL fixes 
limits on the amounts that may be charged for unmodified works, even 
though the parties to the agreement are competitors. Agreements 
between competitors that fix a maximum price that may be charged for 
products are per se illegal under antitrust law. NYNEX Corp. v.
Discon, Inc., 525 U.S. 128, 133 (1998); United States v. Socony-
Vacuum Oil Co., 310 U.S. 150, 218 (1940).

While SCO has shown above that section 2 of the GPL (the only GPL 
provision requiring licensing "at no charge") is inapplicable here, 
because this motion does not involve modified works, this provision 
is illegal and unenforceable. The general counsel for the Open 
Source Initiative acknowledges in his recent treatise: "There is 
also a problem that may prevent enforcement of the GPL's at no 
charge provision. It may be an illegal restraint of trade in some 
countries. Ordinarily, companies are allowed to set their own prices, 
and it is improper for a GPL licensor to restrain that in anyway." 
L. Rosen, Open Source Licensing 132 (2004), available at 
http://www.phptr.com/content/images/0131487876_ch06.pdf.



Note that under FSF's copyright theory, Section 2 is applicable
not only to modifications, but also to all "combinations" 

http://web.novalis.org/talks/compliance-for-developers/slide-6.html
http://web.novalis.org/talks/compliance-for-developers/slide-75.html

that are not legal 

http://web.novalis.org/talks/compliance-for-developers/slide-54.html

in the GNU Republic.

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Re: how much is too much?

[Alexander Terekhov]

John Hasler wrote:
> 
> Chad writes:
> > I'm actually considering a dedication to the public domain. So to clarify
> > the direct issue: My understanding is that I cannot take code that is
> > under the GPL and copy/paste it into a project that I want to dedicate to
> > the public domin. Correct?
> 
> You must release the work as a whole under the terms of the GPL, but you
> can release the portion of which you are sole author under any terms you
> wish.
> 
> > A further question: can GPL code be safely included in a package released
> > under the LGPL?
> 
> No.  

Wrong. The package is a compilation, not a derivative work. 

> Otherwise the GPL would be equivalent to the LGPL.

Go read  "The LGPL Alternative".

regards,
alexander.

P.S. But first sale preempts them both anyway (see "Accepting the GPL").
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Re: how much is too much?

[Alexander Terekhov]

John Hasler wrote:
> 
> Isaac writes:
> > Well, the copyright statute says that one of the exclusive rights of the
> > copyright holder is the *preparation* of derivative works.  (See 17 USC
> > 106).  You don't have to distribute or copy such works in order to
> > infringe.  Creating a derivative work without is enough.  It is not clear
> > to me that the literal words of 2(a) of the GPL do not apply to someone
> > who modifies code on his own system.
> 
> I think that 17 USC 117 applies here.  

But not here. AFAIK, except bug fixing, the German law doesn't have 
17 USC 117 like exception for (private) software "Bearbeitungen" 
(copyrightable derivative works) and "Umgestaltungen" (uncopyrightable 
derivative works, so to speak). But that exclusive right doesn't expand 
to "Sammelwerke" (compilations), fortunately. And "first sale" applies  
regarding lawfully "acquired" (for free including, except "online
services") material objects, thanks god. I'm not sure about copyright 
misuse (another defense against FSF's SCOish claims) -- seems to be 
pure US concept. Classic unenforceable unfair contract terms thing 
comes pretty close, but the FSF stubbornly claims that the [L]GPL is 
not a contract... so go figure, y'know. ;-)

regards,
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Re: how much is too much?

[Alexander Terekhov]

Isaac wrote:
[...]
> > But not here. AFAIK, except bug fixing, the German law doesn't have
> > 17 USC 117 like exception for (private) software "Bearbeitungen"
> > (copyrightable derivative works) and "Umgestaltungen" (uncopyrightable
> 
> Are you sure?  I thought the EU copyright directive required states
> to provide some 17 USC 117 protections.  

Well, I think it boils down to interpretation of "intended purpose."

http://www.wipo.int/clea/docs_new/en/eu/eu020en.html
http://bundesrecht.juris.de/bundesrecht/urhg/__69c.html
http://bundesrecht.juris.de/bundesrecht/urhg/__69d.html
http://groups.google.de/group/misc.legal.computing/msg/7ae912d5c7261755
(contu6)

regards,
alexander.
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Re: how much is too much?

[Alexander Terekhov]

Isaac wrote:
[...]
> 17 USC 117 covers modifications required to run programs when one 
ones a copy.  IMO that would include linking code to a library, 

I don't think so. Think of a "package" in source code - a tarball of 
linked (some modules reference others modules) components. What does 
it have to do with 17 USC 117 as far as preparation and distribution 
of that "package" is concerned? Nothing, I think.

And a single "executable" is just another (binary) form.

> but might not cover rewriting the library to add new functionality.

Agreed.

regards,
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Re: how much is too much?

[Alexander Terekhov]

This is hilarious.

http://lists.gpl-violations.org/pipermail/legal/2005-May/000260.html
(Help needed dealing with ex-employer violating GPL)

regards,
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Re: how much is too much?

[Alexander Terekhov]

John Hasler wrote:
> 
> [plonked] David Kastrup writes:
> > What would it mean to "enforce" a unilateral permission?
> 
> It would mean to produce it as a defense against an infringement claim by
> the copyright owner.

Right.

http://groups.google.de/group/gnu.misc.discuss/msg/49f50be07eddfef7

regards,
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Re: how much is too much?

[Alexander Terekhov]

BTW, apropos

Alexander Terekhov wrote:
> 
> John Hasler wrote:
> >
> > [plonked] David Kastrup writes:
^^^

and

> > > What would it mean to "enforce" a unilateral permission?
^

in the !GPL 

http://groups.google.de/group/gnu.misc.discuss/msg/3e61597328a70ac5

context,

> >
> > It would mean to produce it as a defense against an infringement claim by
> > the copyright owner.
> 
> Right.
> 
> http://groups.google.de/group/gnu.misc.discuss/msg/49f50be07eddfef7


From: [EMAIL PROTECTED]  Add to Address Book 
To: terekhov@
Subject: Windows XP 64-Bit Edition - Order Confirmation 


Thank you for your order. Please note that Microsoft does not provide 
technical or other support for this product. You can visit 
http://support.microsoft.com for self service support options.


Please keep this e-mail as a record of your product key, which is 
required to install the software.


Download:


Click the following link:

http://download.microsoft.com/download/



The file will be in ISO format and must be burned to a CD before you 
can install the software on your computer.


The download files are large so the download may take a considerable 
time to complete.  Microsoft recommends only those with broadband, ADSL 
or other high-speed Internet connections attempt this download.


You will need the following product key to complete the software 
installation process:


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Re: how much is too much?

[Alexander Terekhov]

Alexander Terekhov wrote:
[...]
>  I'm not sure about copyright
> misuse (another defense against FSF's SCOish claims) -- seems to be
> pure US concept. Classic unenforceable unfair contract terms thing
> comes pretty close, but the FSF stubbornly claims that the [L]GPL is
> not a contract... so go figure, y'know. ;-)

Gack.

http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace-12.pdf

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Re: how much is too much?

[Alexander Terekhov]

Isaac wrote:
[...]
> Your not using your imagination.  17 USC 117 allows such copying or
> adapting as is essential to run the software.  IMO that would allow
> compiling, installing, and linking to a library presuming that you
> owned a legal copy of the source code of the library.

My point is that linking is irrelevant (the copyright law, not GNU
copyleft silliness, doesn't establish exclusive right to link). As 
for compiling, installing, and loading/executing, I agree (you 
don't need any license for that thanks to 17 USC 117). 

regards,
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Re: how much is too much?

[Alexander Terekhov]

Isaac wrote:
[...]
> > My point is that linking is irrelevant (the copyright law, not GNU
> > copyleft silliness, doesn't establish exclusive right to link). As
> > for compiling, installing, and loading/executing, I agree (you
> > don't need any license for that thanks to 17 USC 117).
> 
> In the US at least, linking is not irrelevant because linking may create
> RAM copies.  

You mean RAM copying done by compiler and static linker (in 
addition to loading at execution time)? That falls under 
"compiling, installing" above. Essentially, it's the same 
thing as copying the DLL or EXE into some (compressed) folder 
on your disk. 

Apart from that, do you seriously believe that you're violating 
the law every time you defragment discs, scan for viruses, and 
do other things like that all involving creation of RAM copies
of other digital stuff apart from computer programs (music, 
pics, etc.) because it doesn't fall under 17 USC 117?

regards,
alexander.
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Re: how much is too much?

[Alexander Terekhov]

Isaac wrote:  ...

How long do you think will it take Wallace to put the entire GPL'd
code base into quasi public domain (penalty for copyright misuse)?

regards,
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Re: how much is too much?

[Alexander Terekhov]

Alexander Terekhov wrote:
[...]
> http://sco.tuxrocks.com/Docs/Wallace_v_FSF/Wallace-12.pdf

compare it with sorta "prediction" by the fellow Vice President of 
Corporate Affairs and General Counsel of MontaVista Software.

http://www.open-bar.org/docs/GPL-enforceability.pdf

"G. The GPL Violates U.S. Federal Antitrust Law
 Ranking: 5
 Rating: A good claim to make, even if it will not succeed"
   ^^^

well, we'll see.

BTW, the fellow wrote (in "The GPL Fails as a Copyright License")


But what if the GPL is not, in fact, a contract? What if it is only 
a license? It is difficult to imagine how a license could fail. A 
license is, in essence, a person promising to give up the right to 
prevent another from doing certain things. Non-exclusive licenses 
like the GPL do not even need to be in writing. But what if, for some 
reason, a court held the GPL to be an unenforceable license? In that 
case, all arguments regarding contract validity (writing requirements 
under the UCC, consideration, offer and acceptance) fall away, and 
the licensee (who received the code) reverts back to her common law 
rights. That means that she has the rights to use the program (i.e., 
to copy into memory as necessary to run it) and to make a backup copy. 
What disappears are the restrictions and other limitations in the 
GPL. But these will be the only rights a licensee has—she would have 
no right to distribute, and no right to modify.
^^


That's bullshit. It's permitted under 17 USC 109 (distribution) 
and 17 USC 117 (private adaptation).

regards,
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Re: GPL Code calling non GPL code

[Alexander Terekhov]

John Hasler wrote: ...

http://www.linuxworld.com/read/49064_4.htm

regards,
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Re: GPL Code calling non GPL code

[Alexander Terekhov]

Alexander Terekhov wrote:
> 
> John Hasler wrote: ...
> 
> http://www.linuxworld.com/read/49064_4.htm

In the meantime, a message (paid advice) from the GNU Republic.

http://www.linuxrising.org/files/licensingfaq.html



We paid the FSF to have them provide us these answers. So these 
answers are verified correct by people like FSF lawyer and law 
professor Eben Moglen.

Question: Can someone for example distribute 

1. GStreamer, the LGPL library 
2. Totem, a GPL playback application 
3. The binary-only Sorenson decoder 

together in one distribution/operating system ? 

If not, what needs to be changed to make this possible ? 

Answer: This would be a problem, because the GStreamer and Totem 
licenses would forbid it. In order to link GStreamer to Totem, you 
need to use section 3 of the LGPL to convert GStreamer to GPL. The 
GPL version of GStreamer forbids linking to the Sorenson decoder. 
Anyway, the Totem GPL license forbids this. 

If the authors of Totem want to permit this, we have an exception 
for them: the controlled interface exception from the FAQ. The 
idea of this is that you can't get around the GPL just by including 
a LGPL bit in the middle. 

Question: Suppose Apple wants to write a binary-only proprietary 
plugin for GStreamer to decode Sorenson video, which will be shipped 
stand-alone, not part of a package like in the question above. Can 
Apple distribute this binary-only plugin ? 

Answer: Yes, modulo certain reverse engineering requirements in 
section 6 of the LGPL. 



So even when shipped stand-alone it does fall under LGPL's reverse 
engineering requirements.

Now...



Question: If a program released under the GPL uses a library that 
is LGPL, and this library can dlopen plug-ins during runtime, what 
are the requirements for the licenses of a plug-in ?

Answer: You may not distribute the plug-in with the GPL application. 
Distributing the plug-in alone, with the knowledge that it will be 
used primarily by GPL software is a bit of an edge case. We will not 
advise you that it would be safe to do so, but we also will not 
advise you that it would be absolutely forbidden.



or may be not, I gather. Motto is "be afraid."

How SCOish.

regards,
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Re: GPL Code calling non GPL code

[Alexander Terekhov]

Christopher Browne wrote:
> 
> Centuries ago, Nostradamus foresaw when David Kastrup <[EMAIL PROTECTED]> 
> would write:
> > Alexander Terekhov <[EMAIL PROTECTED]> writes:
> >
> >> John Hasler wrote: ...
> >>
> >> http://www.linuxworld.com/read/49064_4.htm
> >
> > Linuxworld, the publication that had its entire senior staff quit
> > recently because of a complete lack of responsible publishing.

Yeah, as if that book review article is in the same class as MOG's 
ramblings.

> >
> > And indeed, this article is quite in line with what one has come to
> > expect from Syscon (the publisher) in general.

GNUtian dak doesn't like http://www.stromian.com/Corner/Feb2005.html,
of course.

> 
> Just out of interest, is there _any_ truth to their claim that the FSF
> has "changed leadership"?  Or was that made up from whole cloth too?

Lessig aside for a moment,

http://www.fsf.org/news/new-executive-director.html

Oh, Ah, BTW, (quoting the article)

So far the FSF has been scrupulous about avoiding court, relying 
on quiet persuasion that moves over to loud public indignation and 
pressure on the infringer from many quarters, and it has been 
successful so far. 

Here's the scheme explained by FSF's own "GPL Compliance Engineer."

http://novalis.org/talks/lsm-talk-2004/slide-31.html



Don't go to court

  FSF hasn't.
  Court is expensive
  Judges don't understand technology
"Is static linking like two icons on one desktop?" 
-Judge Saris, MySQL v. Nusphere oral argument 



http://novalis.org/talks/lsm-talk-2004/slide-37.html



Avoid publicity

  Don't talk about a violation publicly unless you have no choice
  Every violation I have mentioned was already mentioned on Slashdot
  I won't tell you about violations which aren't already public
  Publicity can be a useful threat
  



How SCOish (apart from going to court).

http://www.softpanorama.org/People/Stallman/prophet.shtml
(Negative PR hammer of GPL as a source of income for FSF)



Last year, the foundation alleged that OpenTV, a San Francisco company 
that ships a set-top box containing Linux, was violating the GPL. The 
drama took months to resolve and ended with OpenTV writing a check for 
$65,000 to the Free Software Foundation. "They paid us a very 
substantial payment for our time and trouble," Moglen says. 



So much about FSF's ethics and morality.

regards,
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Re: GPL Code calling non GPL code

[Alexander Terekhov]

John Hasler wrote:
[...]
> Please note that I wrote none of the above.

Noted. Be ready to read upcoming "Will the Real GNU GPL Please 
Stand Up?" by Michael K. Edwards. 50+ pages of utter devastation 
to the FSF. Oh, it's so sweet, s sweet.

regards,
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Re: GPL Code calling non GPL code

[Alexander Terekhov]

John Hasler wrote:
> 
> In the good old days we got trolled by the likes of John Dyson: a jerk, but
> a real hacker nonetheless.  

And what makes a jerk be regarded as "a real hacker"? I'm just curious.

regards,
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Re: Placing GPL licensed application's installer in a properietaryapplication's installer

[Alexander Terekhov]

Wahaj Khan wrote: ...

One and two are the same. Mere aggregation. 

regards,
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Re: Placing GPL licensed application's installer inaproperietaryapplication's installer

[Alexander Terekhov]

Wahaj Khan wrote:
> 
> Yes item 2 in my email must be prohibited as its not mere aggregation,
> its more of merging.

That's a distinction without a difference. It is mere/bare/scant 
aggregation. 

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Re: Wallace v FSF

[Alexander Terekhov]

Alexander Terekhov wrote:
[...]
> "market ... unique attributes of intellectual property licenses"
> 
> Gack.
> 
> http://www.gnu.org/philosophy/words-to-avoid.html#Market
> http://www.gnu.org/philosophy/words-to-avoid.html#IntellectualProperty

"Completely absent from the Complaint, however, is any allegation that 
 this promotion of competition between "open source" and "proprietary" 
 software injures consumers."

http://www.gnu.org/philosophy/words-to-avoid.html#Consumer

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alexander. < in GNUtian mode >
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Re: IP Newsflash

[Alexander Terekhov]

Michael Deutschmann wrote:
> 
> On Mon, 1 Aug 2005, Rui Miguel Seabra wrote:
> > No. [the term "intellectual property" is] a fake blanket designed to
> > induce people into treating patents, copyright and trademarks,
> > instinctively, as one and the same thing.
> 
> Correction: It's a fake blanket designed to induce people into treating
> patents, copyright, trademarks AND PHYSICAL PROPERTY, instinctively, as
> one and the same thing.

"3.1 Intellectual Property

Whatsoever then he removes out of the state that nature hath 
provided, and left it in, he hath mixed his labor with, and 
joined to it something that is his own, and thereby makes it 
his property. 

-- John Locke. Two Treatises on Government. 1764.

 The implicit point of view contained in this essay is a Lockean 
 one. Producing a piece of software requires taking the state of 
 nature, the common heritage of software tools and techniques, 
 and using them to fashion something new. 

 To the extent that programming involves labor — and thinking is 
 certainly labor, ask any student — a piece of software is 
 [intellectual] property. To the extent that invention requires 
 labor, an invention is property. This state of affairs is 
 recognized in intellectual property law, such as copyright and 
 patent law."

  -- Doug Palmer, Why Not Use the GPL? Thoughts on Free 
 and Open-Source Software. 2003.

See also http://www.wipo.int/about-ip/en/overview.html.

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Re: Licensing question about the BSD

[Alexander Terekhov]

Steve wrote:
[...]
> materials.  Doesn't this mean that derived works are therefore covered
> by the BSD license (in addition to any other proprietary or open
> licensing terms the derived work author himself applies)?

Drivative works of BSD'd code (derivative literary works [modulo the AFC
test] under copyright law) are subject to BSD. In source code form, such 
derivative works are subject to BSD and only the BSD -- you simply can't 
modify/extend/etc. original license (unless you're the copyright owner 
in original works). 

> 
> Consider an example.  Some author created an application named 
> "A", and licenses it with the BSD.  Another author creates application 
> "B", containing some code from "A".  

Compilations ("mere agreegations" in GNU speak) are NOT subject to BSD.

> The author of "B" licenses his work under the GPL, but includes a 
> copyright notice and the BSD terms in his source code to satisfy 
> the terms of "A".  

Eh, as long as he didn't modify any BSD'd code, all his works are GPL'd 
and they are separate (literary) works from BSD'd (literary) works from 
"A". And a combination (compilation) of all those works is another 
non-derivative (under copyright law, not metaphysically) work and it is 
subject neither to GPL nor BSD. 

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Re: Licensing question about the BSD

[Alexander Terekhov]

Steve wrote:
> 
> > Drivative works of BSD'd code (derivative literary works [modulo the AFC
> > test] under copyright law) are subject to BSD. In source code form, such
> > derivative works are subject to BSD and only the BSD -- you simply can't
> > modify/extend/etc. original license (unless you're the copyright owner
> > in original works).
> 
> Are you saying that if one creates a derived work from BSD-licensed
> software, they can apply any additional licensing terms they wish to the
> compiled binary output... but those terms would not apply to the source
> code itself?  I must say, that's an extremely BIZARRE distinction to
> wrap my head around!

I see nothing bizarre here. Apart from the (lack of) obligation to disclose
source code of derivative works, it works similar to the CPL, for example.

"A Contributor may choose to distribute the Program in object code form 
 under its own license agreement..."

See CPL section "3. REQUIREMENTS".

> > Eh, as long as he didn't modify any BSD'd code, all his works are GPL'd
> > and they are separate (literary) works from BSD'd (literary) works from
> > "A". And a combination (compilation) of all those works is another
> > non-derivative (under copyright law, not metaphysically) work and it is
> > subject neither to GPL nor BSD.
> 
> You've lost me on this point as well.  Are you trying to say that
> incorporation of another project's code into your own project does not
> constitute a "derived work" so long as you don't modify the code you've
> incorporated?  

It doesn't constitute a derivative work under copyright law.

>   Why is it then that if I build an application on
> MS-Windows using the Cygwin port of GCC, even though I haven't altered a
> single line of GPL'ed code, I am still forced to license my work under
> the GPL... because Cygwin dynamically links my code to a GPL'ed DLL.

No. That's because you've been fooled (not really forced) by the FSF's 
baseless propaganda regarding linking, I suppose.

> 
> I understand that "compilations" are not subject to the GPL or BSD
> (i.e. I could create a proprietary IDE by packaging a BSD'ed text editor
> and the GCC compiler).  However, it's always been my understand that
> LITERALLY embedding someone else's code in your own software (including
> static or dynamic linking) subjects you to the GPL.  That's the entire
> purpose behind the LGPL, isn't it?

See http://www.rosenlaw.com/Rosen_Ch06.pdf and also nice review of that 
book at http://www.stromian.com/Corner/Feb2005.html. Here's what Rosen
had to say about the LGPL:

"The LGPL, therefore, is an anomaly—a hybrid license intended to address 
 a complex issue about program linking and derivative works. It doesn’t 
 solve that problem but merely directs us back to the main event, the 
 GPL license itself."

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Re: What does the FSF advocate regarding non-free software

[Alexander Terekhov]

beirne wrote:
> 
> I'm thinking through my opinions about the FSF and am trying to figure
> something out.  I know the FSF believes that free software is the
> correct form of licensing, but does the FSF formally advocate the
> elimination of copyright laws that allow for non-free software?

http://groups.google.de/group/gnu.misc.discuss/msg/f3dc297fc150be05



AM4: The problem with this change in the copyright laws for three 
would be that you wouldn't get the sources. 

RMS: Right. There would have also to be a condition, a law that to 
sell copies of the software to the public the source code must be 
deposited somewhere so that three years later it can be released. So 
it could be deposited say, with the library of congress in the US, 
and I think other countries have similar institutions where copies 
of published books get placed, and they could also received the 
source code and after three years, publish it. And of course, if the 
source code didn't correspond to the executable that would be fraud, 
and in fact if it really corresponds then they ought to be able to 
check that very easily when the work is published initially so 
you're publishing the source code and somebody there says alright 
"dot slash configure dot slash make" and sees if produces the same 
executables and uh. 



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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
[...]
> Since the BSD license allows code to be used for any purpose, the 
> purpose of creating a derivative work and distributing it under a 
> different license is allowed.  

Use is irrelevant because as far as copyright is concerned, it is 
permitted per 17 USC 117 and the BSD doesn't seek to override 17 
USC 117 "user rights" in contractual manner. Regarding derivative 
works beyond the scope of 17 USC 117 adaptations (note that 17 USC 
117 adaptations may be transferred/distributed only with the 
authorization of the copyright owner), the modified source code 
must retain the BSD license: different license is not allowed.

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
[...]
> http://www.copyright.gov/title17/92chap1.html#103

http://groups.google.de/group/gnu.misc.discuss/msg/50a5eb95d9c8a423

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:

[... BSD ...]

> A different license is allowed for the derivative.  

The BSD states that you should retain the BSD license in source code of 
derivatives: different license is not allowed.

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
[...]
> Suppose I created a painting designed to fit under the Mona Lisa and

Copyright protects software as literary works, not paintings.

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Re: Licensing question about the BSD

[Alexander Terekhov]

John Hasler wrote:
[...]
> can enforce the copyright in the portion of the derivative
> that is exclusively his work.

A derivative is never "exclusively his work" (his derivatives aside
for a moment). And a compilation is always "exclusively his work".

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Re: Licensing question about the BSD

[Alexander Terekhov]

Isaac wrote:
> 
> On Fri, 05 Aug 2005 03:50:58 +0200, Alexander Terekhov <[EMAIL PROTECTED]> 
> wrote:
> >
> > Bruce Lewis wrote:
> > [...]
> >> Suppose I created a painting designed to fit under the Mona Lisa and
> >
> > Copyright protects software as literary works, not paintings.
> 
> Why does this matter?

Yeah, I should have said that copyright doesn't establish exclusive
right to 
"designed to fit". Ok now?

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
[...]
> Furthermore, software that builds on but does not modify other software
> could be described by any of the three verbs in "or any other form in
> which a work may be recast, transformed, or adapted."

Copyright protects software as literary works. Things like "builds on"
are irrelevant because they don't constitute creation of derivative 
literary works under copyright law. It's not that hard to grasp, stupid.

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
> 
> Alexander Terekhov <[EMAIL PROTECTED]> writes:
> 
> > Bruce Lewis wrote:
> >
> > [... BSD ...]
> >
> > > A different license is allowed for the derivative.
> >
> > The BSD states that you should retain the BSD license in source code of
> > derivatives: different license is not allowed.
> 
> The boy scouts state that you should bring a compass when you go into
> the woods: bringing bug spray is not allowed.

Heck. Boy scouts. Hey boy, try thinking of real software derivatives 
like human translations from one programming language to the other 
with the same set of protected elements in both original work and 
derivative work (which falls under "modifications" in the BSD case) 
or when a derivative work is a mere subset (with respect to protected 
elements). In source code form, derivative works of BSD code must 
remain under the BSD: different license is not allowed.

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
[...]
> GPL'ed code.  Your application's dependence on the GPLed code is very
> likely to make it a derivative work.

"Various claims made by the FSF, conflating engineering dependencies 
 with copyright infringement, are not correct as a matter of law and 
 do not form part of the agreement accepted by a licensee when 
 exercising the license granted in the GPL. Therefore, 
 notwithstanding the drafters' intentions, the GPL text as written 
 does not compel the release of source code for independently 
 authored software components that use (or are used by) GPL programs 
 through any of the usual mechanisms employed elsewhere in the 
 software industry. GPL "enforcement" actions that proceed on this 
 basis, including those against NeXT and MCC which resulted in the
 assignment to the FSF of copyright to the Objective C and C++ front
 ends to GCC, operate under false pretenses."

   -- Michael K. Edwards, Will the Real GNU GPL Please Stand Up?, 
  unpublished draft 10th June 2005.

regards,
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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
[...]
> brush strokes are all mine, but it may be considered a part of the work
> in which the Mona Lisa was used, if it is dependent on lining up with
> the Mona Lisa for its value.

http://groups.google.de/group/comp.programming.threads/msg/8c98fb4bd0d6a15e
("The Game Genie is useless by itself")

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
> 
> Alexander Terekhov <[EMAIL PROTECTED]> writes:
> 
> > Heck. Boy scouts. Hey boy, try thinking of real software derivatives
> > like human translations from one programming language to the other
> > with the same set of protected elements in both original work and
> > derivative work (which falls under "modifications" in the BSD case)
> 
> Even in this case the derivative work can have its own copyright
> statement 

Not "its own". A non-derivative compilation (i.e. "not based" in the 
derivative sense under copyright law on some other compilation) have 
its own its own copyright statements, not derivative works. Derivative 
works are under copyright of both its (lawful) creator(s) and the 
owner(s) of the original work.

>   and license.  It must retain the BSD copyright statement and
> license, but that still only applies to the original work.

It applies the entire inseparable derivative work. Stop confusing
derivative works with non-derivative compilations where each
constituent work can be under its own license.

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
[...]
> Now you are citing someone who says "Such innovations rarely will
> constitute infringing derivative works under the Copyright Act."

Someone == United States Court of Appeals, Ninth Circuit.

> 
> "Rarely" implies it is possible.  

That mild and polite wording doesn't subvert the clear message. 
(Hint: "See generally Nadan, supra, at 1667-72.")

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
> 
> Alexander Terekhov <[EMAIL PROTECTED]> writes:
> 
> > It applies the entire inseparable derivative work. Stop confusing
> > derivative works with non-derivative compilations where each
> > constituent work can be under its own license.
> 
> You'll have to lobby congress to change "compilation or derivative work"
> to just "compilation" in Title 17 chapter 1 section 103(b).  Until then
> I will remain "confused".

You must be reading something that isn't there. The "independent"
status of the new copyright with respect to preexisting copyright(s) 
in the sense that it "does not affect or enlarge the scope, duration, 
ownership, or subsistence of, any copyright protection in the 
preexisting material" is the same in both cases. 

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Re: Licensing question about the BSD

[Alexander Terekhov]

Bruce Lewis wrote:
> 
> Alexander Terekhov <[EMAIL PROTECTED]> writes:
> 
> > You must be reading something that isn't there. The "independent"
> > status of the new copyright with respect to preexisting copyright(s)
> > in the sense that it "does not affect or enlarge the scope, duration,
> > ownership, or subsistence of, any copyright protection in the
> > preexisting material" is the same in both cases.
> 
> All I'm reading is that in both cases a new copyright exists,

Sure it exists. 

> contrary to your statement:
> 
> > A non-derivative compilation (i.e. "not based" in the
> > derivative sense under copyright law on some other compilation) have
> > its own its own copyright statements, not derivative works.

In the case of a non-derivative compilation, the new copyright 
that covers that work (as a work formed by the collection and 
assembling of preexisting materials or of data that are selected, 
coordinated, or arranged) is indeed "its own" and just can't be 
preempted by the copyrights in the constituent works (there's no 
exclusive right to prepare [non-derivative] compilations). OTOH, 
derivative works can't be prepared without permission (that's 
apart from 17 USC 117 adaptations) and are under multiple 
copyrights: new copyright plus copyright(s) covering all those
protected elements from the preexisting work. So it's not "its 
own" copyright. Got it now?

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Re: Licensing question about the BSD

[Alexander Terekhov]

Alexander Terekhov wrote:
[...]
> "Various claims made by the FSF, conflating engineering dependencies
>  with copyright infringement, are not correct as a matter of law and
>  do not form part of the agreement accepted by a licensee when
>  exercising the license granted in the GPL. Therefore,
>  notwithstanding the drafters' intentions, the GPL text as written
>  does not compel the release of source code for independently
>  authored software components that use (or are used by) GPL programs
>  through any of the usual mechanisms employed elsewhere in the
>  software industry. GPL "enforcement" actions that proceed on this
>  basis, including those against NeXT and MCC which resulted in the
>  assignment to the FSF of copyright to the Objective C and C++ front
>  ends to GCC, operate under false pretenses."
> 
>-- Michael K. Edwards, Will the Real GNU GPL Please Stand Up?,
>   unpublished draft 10th June 2005.

Edwards says that  here are a couple of messages you might 
point him [plonked GNUtian dak] to, regarding his "courts and legal 
departments don't agree":

http://lists.debian.org/debian-legal/2005/07/msg00524.html (that's 
Humberto's)

http://lists.debian.org/debian-legal/2005/07/msg00525.html
and especially the LPF amicus brief linked there, from which I like
the paragraph quoted at
http://lists.debian.org/debian-legal/2005/05/msg00545.html

http://lists.debian.org/debian-legal/2005/07/msg00582.html
(reasonably concise "why did the FSF effectively lose in 
Progress v. MySQL")

and on NeXT and MCC,
http://lists.debian.org/debian-legal/2005/01/msg00921.html
and several comments elsewhere in that thread (or of course you 
can use the summary in the draft)

If he's more or less sincere, you can suggest that it's worth
following those threads back and forth to see rebuttals to rebuttals
and then not bothering to make those arguments that turn out not to 
be defensible.  I have never yet seen that cause someone from budging
from a "but Eben Moglen said so and the protection racket works"
position, but there's a first time for everything.  :-)



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Re: Licensing question about the BSD

[Alexander Terekhov]

Isaac wrote:
[...]
> >http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
> >http://gpl-violations.org/news/20050414-fortinet-injunction.html>
> >
> 
> These cases really do not appear to be on point 

These cases are not really "cases" to begin with (that's apart from fact 
that orders were limited to netfilter/iptables code only, and said 
absolutely nothing about larger combined work as a whole). Einstweilige 
Verfuegung (ex parte action) != Hauptverfahren (law suit). 

http://www.macnewsworld.com/story/43996.html



It's a Small Welte After All 

Across the wide ocean, other enforcement of the GPL runs along a 
different trail. Harald Welte, a self-appointed enforcer of the GPL 
who operates a GPL Web site filed two actions with the District Court 
of Munich to enforce the license. In both cases, Welte was the author 
of code that had appeared in the defendant's product. The court 
granted Welte an injunction against Sitecom Deutschland GmbH, 
prohibiting Sitecom from distributing a wireless networking router 
until it complied with the GPL.



Well, the injunction was about "netfilter/iptables code" and nothing
else. No word about the router.

http://groups.google.de/group/gnu.misc.discuss/msg/f80709afd63b125a
http://groups.google.de/group/gnu.misc.discuss/msg/cba0154ba16f2117



Sitecom appealed the injunction, but lost, 



Sitecom's objection (not really "appeal") to the injunction had really 
nothing to do with the GPL. And the subsequent ruling by the same
district court "discussing" the GPL (as presented by Welte's attorney)
was so bizarre that nobody over here in his right mind believes that it 
could have withstand the scrutiny of Hauptverfahren, real appeals aside 
for a moment.



and Sitecom later posted the terms of the GPL on its FAQ Web page for 
the router. Welte also filed for an injunction against Fortinet UK Ltd. 
based on its firewall products, with similar results.

Though much has been made of these two cases, there are reasons why 
Welte has already obtained injunctions in Germany while the FSF has 
not yet sought one in the US. Injunctive enforcement in Germany is so 
simple and quick that it makes Americans suspicious about piddling 
legal details like legal due process. In Germany, a preliminary 
injunction can be obtained ex parte -- in other words, without giving 
the defendant the chance to defend itself. (This has the 
appropriately scary sounding name einstweilige Verfuegung.) 



See also:

http://groups.google.de/group/comp.sys.ibm.pc.hardware.chips/msg/1e07a593e5e09d59
http://groups.google.de/group/comp.sys.ibm.pc.hardware.chips/msg/3bdfe293b33c6b6e

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Re: Licensing question about the BSD

[Alexander Terekhov]

Alexander Terekhov wrote:
[...]
> http://www.macnewsworld.com/story/43996.html

I like this:



Some of Welte's targets have complied voluntarily, but one suspects that 
is because they were simply unaware of the problem. Welte apparently has 
no authority to enforce these copyrights. These actions are not really 
legal enforcement -- more the equivalent of picketing companies that use 
cheap overseas labor. It is an attempt to embarrass, not enforce.

It is also impossible to avoid observing that Welte often proceeds 
without the benefit of legal analysis. For instance, he targeted AOpen, 
which responded, that he "should have directed that letter to their 
Taiwanese mother company, since the products that I claim are in 
violation of the GPL are not sold in Germany. They don't get it. Its 
their problem if they don't comply with the license. Its they who are 
liable for copyright infringement. I don't care which particular 
subsidiary of a multinational corportation [sic] is responsible. It is 
in the best mutual interest of any subsidiary to assure that they comply 
with license conditions."

Actually, AOpen's point was probably that there was no action under 
German law because lack of an infringing product in Germany meant it was 
not within German jurisdiction. But, it so happened, that AOpen was 
actually compliant, having offered the source code on a German Web site, 
as Welte later noted in his blog. Nevermind.

This kind of stuff gives lawyers the willies, on the one hand. Lay 
commentators who post on blogs or bulletin boards about open source legal 
issues without the benefit of legal reasoning are a dime a dozen, but at 
least they don't usually sue people. On the other hand, who would you 
rather be sued by: Welte or the FSF? Given that most of Welte's complaints 
would fail in the U.S. on procedural grounds that would allow a defendant 
to jettison the case quickly, he is my plaintiff of choice. 

Other enforcement of the GPL has been of less note. The MySQL case, which 
is the only lawsuit ever filed in the U.S. regarding GPL code, was 
disposed of on unrelated grounds. The FSF has conducted regular informal 
enforcement, but none has garnered quite the press of the Linksys matter. 
In 2002, the FSF engaged in a GPL enforcement action against OpenTV, a San 
Francisco company that ships a set-top box containing Linux. According to 
Forbes, OpenTV ended up paying the FSF $65,000. But OpenTV also reportedly 
complied by making available the requested code, so the purpose of the 
payment is unclear. The FSF's stated mission is not to demand money 
damages for GPL violations.

Meanwhile, we are all waiting for the other shoe to drop. And while rumors 
occasionally circulate that lawsuits will be filed -- as in the case of 
OpenTV -- there is a big difference between making threats and filing 
lawsuits. So, get used to standing on one foot, while legend of Linksys 
lives on.



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Re: Licensing question about the BSD

[Alexander Terekhov]

Isaac wrote:
[...]
> >http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
> >http://gpl-violations.org/news/20050414-fortinet-injunction.html>

I hear that (plonked) GNUtian dak seems to be unaware the District Court 
of Munich I judged that the GPL is a contract governed by the Sect. 158 
of the German Civil Act (BGB) http://dejure.org/gesetze/BGB/158.html.

http://www.jbb.de/judgment_dc_munich_gpl.pdf
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf

BTW, here's a rather funny footnote from the JBB's translation:

"2 In the original judgment, the court mentions Section 158 of the 
 "German Copyright Act". This cannot be correct since such paragraph 
 does not exist in said Act. In addition, it is entirely clear that 
 the court referred to Section 158 of the German Civil Code. For 
 these reasons, the translator has taken the liberty to correct the 
 error while at the same time acknowledging that this reference need 
 be made."

Note that Till Jaeger of JBB is Welte's attorney and sorta German
Incarnation of Eben Moglen under German Law so to speak -- he runs 
the "Instituts für Rechtsfragen der Freien und Open Source Software" 
(http://www.ifross.de) which advocates that contractual "condition 
subsequent" model based upon Sect. 158 BGB is the right 
interpretation of the GPL in Germany... and also that as a 
consequence, the GPL'd stuff should be exempt from "first sale"...
other bizarre legal constructions of his own (together with his 
friend Metzger) creation aside for a moment.

regards,
alexander.
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Re: Licensing question about the BSD

[Alexander Terekhov]

Alexander Terekhov wrote:
> 
> Isaac wrote:
> [...]
> > >http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
> > >http://gpl-violations.org/news/20050414-fortinet-injunction.html>
> 
> I hear that (plonked) GNUtian dak seems to be unaware the District Court
> of Munich I judged that the GPL is a contract governed by the Sect. 158
> of the German Civil Act (BGB) http://dejure.org/gesetze/BGB/158.html.

I hear that (plonked) GNUtian dak seems to be confusing the GPL with 
"einseitiges Rechtsgeschäft".

http://weblawg.saschakremer.de/index.php?p=24

---
Wenn eine Software unter der GPL veröffentlicht wird mag sich dies 
zunächst tatsächlich als einseitige Willenserklärung an eine 
unbestimmte Vielzahl von potentiellen Nutzern (oder Lizenznehmern) 
darstellen.

Spätestens in dem Zeitpunkt, in dem die Software von einem Nutzer 
aber konkret in Betrieb genommen wird, erklärt sich der Nutzer 
zumindest konkludent mit den aus der GPL resultierenden Lizenz-
Bestimmungen einverstanden und unterwirft sich deren Bindungen 
(etwa was die weitere Verwendung des unter der GPL veröffentlichten 
Codes angeht). Eine solche Bindungswirkung kann aber nicht durch 
eine einseitige Willenserklärung, sondern nur durch einen - wenn 
auch durch Inbetriebnahme der Software möglicherweise nur 
konkludent geschlossenen - Vertrag begründet werden.

Damit finden dann aber auch die §§ 305 ff. BGB Anwendung. 

[...]

Das in Nr.5 der GPL festgeschriebene Selbstverständnis des Autors 
ist für die rechtliche Bewertung der GPL in Deutschland allenfalls 
ein Hilfsmittel, aber keinesfalls bindend. Vielmehr muss sich eine 
Erklärung nach ihrem materiellen Gehalt und nicht nach der 
Bezeichnung oder Zuordnung ihres Verfassers beurteilen lassen.

Die Einräumung einer Lizenz (nichts anderes als eine 
Nutzungsvereinbarung) bedarf nicht nur eines Verpflichtungsgeschäfts 
(also der Abrede über die Einräumung des Nutzungsrechts), sondern 
auch eines Erfüllungsgeschäfts (die tatsächliche Übertragung des 
Nutzungsrechts). Diese Trennung ist aus dem allgemeinen Zivilrecht 
bestens bekannt, bei beiden handelt es sich um Rechtsgeschäfte.

Das von ihnen genannte Beispiel des Preisausschreibens (als 
Sonderfall der Auslobung) als einseitiges Rechtsgeschäft passt für 
einen Vergleich mit der GPL gar nicht. Bei der Auslobung (oder dem 
Preisausschreiben) geht allein der Erklärende eine (schuldrechtliche) 
Verpflichtung ein, während der Rechtskreis des \"Teilnehmenden\” nur 
erweitert wird, ohne auf Seiten des Angesprochenen zugleich 
Verpflichtungen zu begründen.

Bei der GPL ist dem aber gerade nicht so: Hier sollen auch auf 
Seiten des Angesprochenen Verpflichtungen (etwa Software, die unter 
Verwendung des unter GPL stehenden Codes entstanden ist, ebenfalls 
unter der GPL zu veröffentlichen) begründet werden. Rechtliche 
Nachteile auf Seiten eines Dritten können aber (außer durch 
hoheitliches Handeln auf Basis einer entsprechenden Rechtsgrundlage) 
regelmäßig nur durch zweiseitiges Rechtsgeschäft begründet werden.

Ihr Beispiel vermag mich daher nicht zu überzeugen. Auch im 
übrigen - ungeachtet der GPL - entstehen bei der Übertragung eines 
einfachen Nutzungsrechts auf Seiten des Nutzungsberechtigten 
rechtliche Beschränkungen: So kann der \"einfach\” 
Nutzungsberechtigte Dritten nicht ein weiteres \"einfaches\” 
Nutzungsrecht einräumen, sondern bedarf hierzu der Zustimmung des 
Rechteinhabers. Mag dieses auch \"vorab\” durch den Rechteinhaber 
erklärt worden sein ändert dies nichts an der Tatsache, dass mit 
der Einräumung eines Nutzungsrechts eine Sonderrechtsbeziehung 
zwischen dem Rechteinhaber und dem Nutzungsberechtigten entsteht, 
die vertragliche Rechte und Pflichten auf beiden Seiten begründet. 
Dies alles kann nur durch zweiseitiges Rechtsgeschäft, also durch 
Vertrag geregelt werden, um etwa im Fall von Leistungsstörungen 
bei Fehlen entsprechender Vereinbarungen eine Lösung mittels des 
allgemeinen Leistungsstörungsrechts des BGB herbeiführen zu können.

Im Übrigen muss der Verzicht auf den Zugang der Annahmeerklärung 
muss nach § 151 BGB nicht ausdrücklich erklärt werden, ausreichend 
ist, wenn dies nach der Verkehrssitte unterstellt werden kann - dies 
dürfte bei der GPL der Fall sein.

Es spricht damit einiges für die Annahme eines (zumindest 
konkludenten) Vertragsschlusses bei der Einräumung eines 
Nutzungsrechts - auch unter der GPL.

Letztlich könnte man auch ohne AGB zu dem Ergebnis kommen, dass 
jedweder Haftungsausschluss in der GPL als Verstoß gegen den durch 
§ 242 BGB normierten Grundsatz von Treu und Glauben nicht ohnehin 
unwirksam ist. 
---

regards,
alexander.
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