Re: using GPL api to be used in a properietary software
Stefaan A Eeckels [EMAIL PROTECTED] writes: Here's the definition of a derivative work, taken (without permission, but fair use (still) applies :-) from 101 USC 17: | A derivative work is a work based upon one or more preexisting | works, such as a translation, musical arrangement, dramatization, | fictionalization, motion picture version, sound recording, art | reproduction, abridgment, condensation, or any other form in which a | work may be recast, transformed, or adapted. A work consisting of | editorial revisions, annotations, elaborations, or other | modifications which, as a whole, represent an original work of | authorship, is a derivative work. Here's the definition of such as, taken from 101 USC 17 as well: | The terms including and such as are illustrative and not | limitative. I find it unconvincing to argue that a program is not a derivative work of a dynamic library just because this case is not properly covered by a non-limitative list of illustrations. Martin ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: using GPL api to be used in a properietary software
On Sun, 13 Mar 2005 10:37:43 +0100 Martin Dickopp [EMAIL PROTECTED] wrote: I find it unconvincing to argue that a program is not a derivative work of a dynamic library just because this case is not properly covered by a non-limitative list of illustrations. The enumeration illustrates the way in which based upon should be construed. A program in source code formar references a library, but is not based upon the library in the sense of the definition in 101 USC 17 (which would require an adaptation, transformation, etc. of the material in the library). A book that refers the user to a dictionary for the definition of a number of words is not a derivative work of that dictionary. Both source code and dynamically linked executables refer to the libraries (and other resources such as the OS). Once you claim that a dynamically linked executable is a derivative work of the libraries it uses, you have precious few arguments left to argue the source code is an independent work. You have equally few arguments left to argue that programs aren't derivative works of the Operating System they run on. Do _you_ see a significant difference between a function or method call in source code, and its simple transformation into a machine-usable format in the dynamically linked executable? Isn't the latter simply a mechanical transformation of the former? -- Stefaan -- As complexity rises, precise statements lose meaning, and meaningful statements lose precision. -- Lotfi Zadeh ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: using GPL api to be used in a properietary software
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? regards, alexander. ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: using GPL api to be used in a properietary software
On Sun, 13 Mar 2005 14:31:15 +0100 David Kastrup [EMAIL PROTECTED] wrote: Stefaan A Eeckels [EMAIL PROTECTED] writes: A book that refers the user to a dictionary for the definition of a number of words is not a derivative work of that dictionary. So why are there numerous court decisions that deep linking of web site material constitutes copyright infringement? Are you implying that refering to dictionary does indeed create a derivative work? You have equally few arguments left to argue that programs aren't derivative works of the Operating System they run on. Why do you think is there a special exception/clarification regarding execution of executables in the Linux kernel licence? So are you of the opinion that every program, whatever the format (source or otherwise) is a derivative work of the Operating System (and as such could not be written without the prior consent of the owner of the OS copyrights)? If so, you're casting your nets so wide that any new work becomes a derivative work of everthing previously written. -- Stefaan -- As complexity rises, precise statements lose meaning, and meaningful statements lose precision. -- Lotfi Zadeh ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: using GPL api to be used in a properietary software
Stefaan A Eeckels [EMAIL PROTECTED] writes: On Sun, 13 Mar 2005 14:31:15 +0100 David Kastrup [EMAIL PROTECTED] wrote: Stefaan A Eeckels [EMAIL PROTECTED] writes: A book that refers the user to a dictionary for the definition of a number of words is not a derivative work of that dictionary. So why are there numerous court decisions that deep linking of web site material constitutes copyright infringement? Are you implying that refering to dictionary does indeed create a derivative work? It depends on the particular use. If I encode a message by exclusively referring to word/lines/pages of a particular dictionary, then I have a quite different case than when I just say look up the term in a dictionary like Webster's. You have equally few arguments left to argue that programs aren't derivative works of the Operating System they run on. Why do you think is there a special exception/clarification regarding execution of executables in the Linux kernel licence? So are you of the opinion that every program, whatever the format (source or otherwise) is a derivative work of the Operating System (and as such could not be written without the prior consent of the owner of the OS copyrights)? I am of the opinion that it is stupid to ignore existing court cases and declare only those theories and cases relevant that one prefers oneself. The execution of the law does not depend on my opinion about its letter and spirit. People are generously dealing in advice here even where the case law indicates that in reality things are much less clearcut than they want to make believe. And that is simply reckless when giving advice. If so, you're casting your nets so wide that any new work becomes a derivative work of everthing previously written. It is not I that is interpreting the law in the courts. -- David Kastrup, Kriemhildstr. 15, 44793 Bochum ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: using GPL api to be used in a properietary software
On Sun, 13 Mar 2005 18:59:23 +0100 David Kastrup [EMAIL PROTECTED] wrote: Stefaan A Eeckels [EMAIL PROTECTED] writes: Tell me to respect the wishes of the author, and I'm all with you, even if these wishes seem - at first sight - rather outlandish. But this lunatic fight to get the scope of copyright extended, by exactly those people who originally wanted to abolish all forms of copyright, is one of the saddest quixotic battles I know of. You don't get it. The FSF is not fighting for the laws that give the GPL teeth. But while this insanity prevails, nothing is gained by pretending it isn't. Have you stopped to think about the implications of having dynamic linking (where, remember, nothing more than a number of references to a library are contained in the compiled code) legally equated with producing a derivative work? It would be tantamount to declaring all source code derivative works of the OS. What's the difference between a function call in source code, and its compiled counterpart? OK, the GPL didn't take dynamic linking into account in its strategy, and the effect of GPL'ing libraries was less than expected. But then stubbornly pursuing a strategy that, when successful, would be an effective strengthening of the restrictions the copyright statutes already impose, shifting the balance even further towards the large corporates, can only lead to a Pyrrhic victory. If you want no defense against people unilaterally taking your work and turning it as proprietary as the laws allow, use the BSD licences. The explicit and expressed purpose of the GPL is to make the code it covers not be subvertible in this manner. The use of a GPLed library doesn't subvert the code. It fails to extend the GPL to the program, but the whole take of the FSF on user does the linking is merely sour grapes (doesn't the GPL itself not say that it doesn't limit the user from using the program?). People that are clamoring against the consequences of the GPL are clamoring against the consequences of copyright laws. Lobby for weakening the copyright laws, and the GPL will lose its teeth along with the other licences. I'd certainly welcome a world where derivative work lawsuits were not, in court, repeatedly and decidedly enforced even for trivial cases akin to linking. If you refer to deep HTML linking, then certainly clamouring that you believe it to be equally true for dynamic linking [because that would allow you to thwart those nasty developers of non-Free software who freeload off GPLed libraries (not that there are many, given that most library developers would like their code to be used)] isn't going to contribute to putting an end to that situation. But the ongoing practice does not support Alexander's fantasies. And as long as it doesn't, nothing is gained by pretenting that the GPL should in some manner have less validity than other licences. This isn't about Alexander. This is about risking to get judgements that will throttle any and all independent software developers even more effectively than the current hideous patent initiative of the Council and the European Commission. You wanna write an app for our OS? Ask our permission first. Thank you. -- Stefaan -- As complexity rises, precise statements lose meaning, and meaningful statements lose precision. -- Lotfi Zadeh ___ Gnu-misc-discuss mailing list Gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
