Re: GPL 2(b) HUH?

[Hyman Rosen]

Barry Margolin wrote:
But if you write the new scheduler for the purpose of merging it into 
the Linux kernel, then the scheduler doesn't really have a license of 
its own.  You've simply created a derivative of the Linux kernel, and 
you're bound by its license, which is GPL.


See? You're one of those people I was talking about.

A work is derivative only if it's a transformation of an
existing work sufficient to be considered a significant
act of authorship. Someone who writes a scheduler, even
for the sole purpose of merging it into Linux, does not
have to license the code for the scheduler itself under
GPL2. That scheduler is not a derivative of the Linux
kernel because it is not a transformation of the kernel
representing a significant act of authorship. It is not
a combined work because it does not contain within itself
copies of other works. It is only when a kernel binary is
built containing the new scheduler and the rest of Linux
that the new scheduler must be licensed under the GPL if
the kernel is to be distributed at all. If the scheduler
could be distributed as a standalone module which Linux
dynamically loaded then it need never be distributed under
the GPL.
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Re: GPL 2(b) HUH?

[David Kastrup]

Barry Margolin <[EMAIL PROTECTED]> writes:

> In article <[EMAIL PROTECTED]>,
>  Hyman Rosen <[EMAIL PROTECTED]> wrote:
>
>> Barry Margolin wrote:
>> > That's precisely the case I thought we were discussing.
>>  > Did I misunderstand?
>> 
>> I believe that there are people who argue that even the
>> standalone scheduler code must be licensed under the GPL.
>
> If the scheduler was an independent work that someone found, and
> merged into the Linux kernel, I agree.
>
> But if you write the new scheduler for the purpose of merging it into
> the Linux kernel, then the scheduler doesn't really have a license of
> its own.  You've simply created a derivative of the Linux kernel, and
> you're bound by its license, which is GPL.

I really think this depends on the case in question.  And likely on the
jurisdiction in question.  It is more a case of "this is a sufficiently
involved area that you will want to get a legal opinion about your
particular case, and hopefully from your lawyer instead of somebody
else".

"Tread carefully" is not the same as "you'll certainly fall".

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: GPL 2(b) HUH?

[Barry Margolin]

In article <[EMAIL PROTECTED]>,
 Hyman Rosen <[EMAIL PROTECTED]> wrote:

> Barry Margolin wrote:
> > That's precisely the case I thought we were discussing.
>  > Did I misunderstand?
> 
> I believe that there are people who argue that even the
> standalone scheduler code must be licensed under the GPL.

If the scheduler was an independent work that someone found, and merged 
into the Linux kernel, I agree.

But if you write the new scheduler for the purpose of merging it into 
the Linux kernel, then the scheduler doesn't really have a license of 
its own.  You've simply created a derivative of the Linux kernel, and 
you're bound by its license, which is GPL.

-- 
Barry Margolin, [EMAIL PROTECTED]
Arlington, MA
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Barry Margolin wrote:

That's precisely the case I thought we were discussing.

> Did I misunderstand?

I believe that there are people who argue that even the
standalone scheduler code must be licensed under the GPL.
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Re: GPL 2(b) HUH?

[Barry Margolin]

In article <[EMAIL PROTECTED]>,
 Hyman Rosen <[EMAIL PROTECTED]> wrote:

> Barry Margolin wrote:
> > In my opinion, the scheduler is an integral part of Linux
> 
> If I write a piece of code intended to be a Linux scheduler,
> I may distribute that code any way I choose. I do not have
> to license it under the terms of Linux's license. That is
> true even though the scheduler is of no use except as part
> of a Linux kernel, because copyright doesn't care whether a
> program works, or is good for anything.

I agree, although I don't see how this is relevant to the discussion.

> 
> If I make a combined work, say by producing a Linux kernel
> containing my scheduler, only then does the combined work
> fall under the GPL, and only then would I have to distribute
> my code under the GPL.

That's precisely the case I thought we were discussing.  Did I 
misunderstand?

-- 
Barry Margolin, [EMAIL PROTECTED]
Arlington, MA
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Re: GPL 2(b) HUH?

[Hyman Rosen]

John Hasler wrote:

So putting a new chapter nine into Harry Potter does not create a
derivative?


I don't know enough to say. Copyright extends to characters and the
right to sequels. Writing an unauthorized story using those characters
is not permitted, and someone who creates an unauthorized work does
not gain copyright to it, even to his original portions:


The subject matter of copyright as specified by section 102
includes compilations and derivative works, but protection
for a work employing preexisting material in which copyright
subsists does not extend to any part of the work in which
such material has been used unlawfully.
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Re: GPL 2(b) HUH?

[Rjack]

John Hasler wrote:

Hyman Rosen writes:

Only if putting the new scheduler into Linux involves enough
changes to the rest of Linux to be considered a significant
work of authorship. Otherwise, Linux + new scheduler is just a
combined work.



So putting a new chapter nine into Harry Potter does not create a
 derivative?


We must first answer a few preliminary questions before we may
decide whether a "new chapter" creates a derivative work.

Was the chapter written in C (Linux) or common English (Potter)?

Was The chapter written by one author (Potter) or literally
hundreds of authors (Linux)?

If you can't answer this question, STOP now: What (and whose)
exclusive work was actually modified?

Let's apply the AFC test to the "new chapter":

What does the derivative work look like after filtering the
unprotected elements?

Elements are filtered out of consideration on the basis of broad
criteria, including:

1) Is the element’s expression dictated by reasons of efficiency,
such as when it is the best way of performing a particular function.

2) Is the element’s expression dictated by external factors, such as
using an existing file format or interoperating with another
program.

3) Is the element’s expression a conventional way of writing
something in the particular programming language or machine running
the program.

4) Is the element, at the particular level of abstraction, an
unprotectable process and not protectable expression.

5) Is the element is taken from the public domain or is it an
non-protectable fact.

Any protection for elements dictated by efficiency or external
factors or processes must come from patents or trade secrets, if at
all, and not from copyright.

It would be advisable to read: "Chapter 2: Copyright of Computer
Programs" before leaping to any conclusions about derivative
computer programs.

http://digital-law-online.info/lpdi1.0/treatise24.html

Sincerely,
Rjack :)
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Re: GPL 2(b) HUH?

[John Hasler]

Hyman Rosen writes:
> Only if putting the new scheduler into Linux involves enough changes to
> the rest of Linux to be considered a significant work of
> authorship. Otherwise, Linux + new scheduler is just a combined work.

So putting a new chapter nine into Harry Potter does not create a
derivative?
-- 
John Hasler 
[EMAIL PROTECTED]
Dancing Horse Hill
Elmwood, WI USA
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Barry Margolin wrote:
I don't think anyone was saying that the new scheduler is a derivative.  
It's the new Linux that includes the new scheduler that's a derivative 
of the old Linux.


Only if putting the new scheduler into Linux involves enough
changes to the rest of Linux to be considered a significant
work of authorship. Otherwise, Linux + new scheduler is just
a combined work.
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Barry Margolin wrote:

In my opinion, the scheduler is an integral part of Linux


If I write a piece of code intended to be a Linux scheduler,
I may distribute that code any way I choose. I do not have
to license it under the terms of Linux's license. That is
true even though the scheduler is of no use except as part
of a Linux kernel, because copyright doesn't care whether a
program works, or is good for anything.

If I make a combined work, say by producing a Linux kernel
containing my scheduler, only then does the combined work
fall under the GPL, and only then would I have to distribute
my code under the GPL.

I know the FSF would like people to believe that code which
interoperates with other code is bound by the copyright of
the other code, but that simply is not supported by U.S. law.
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Rahul Dhesi wrote:

Who caused libGNU to load into memory? The end-user or the author? I
submit that both did, because each is a link in the chain without which
the final load of libGNU would not have occurred.


Both the copyright statute and the GPL allow a program to be run,
so assigning responsibility is irrelevant.


If the author is distributing libGNU and HyProg
together such that they will be used together, and HyProg requires
libGNU, then the author has ventured beyond mere aggregation.


That isn't relevant either, because...

> The HyProg + libGNU combination is now a single work, because both pieces

are loaded together when the author's instructions are followed.


...it doesn't matter how the programs act when they run.
When HyProg is distributed, it is not affected by the
copyright on libGNU because it does not contain libGNU.


Is this a derivative work or a mere collection?


HyProg is not a collection including libGNU because it does not
contain libGNU, most certainly not while it is being conveyed.
It is not a derivative work of libGNU because it is not a changed
version of libGNU at all, much less with enough changes to be
considered a significant work of authorship.


Is an automobile a mere collection of engine, wheels, and other parts?


Of what relevance is that? Copyright on a work controls what may
be done with that work, not with others that happen to refer to it
or make use of it but do not copy it.
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Re: GPL 2(b) HUH?

[Barry Margolin]

In article <[EMAIL PROTECTED]>,
 Alexander Terekhov <[EMAIL PROTECTED]> wrote:

> Ben Pfaff wrote:
> [...]
> > Linux is not designed to support pluggable schedulers, and in
> > fact Linus has expressly said that he does not want Linux to
> > easily support dropping in alternate schedulers.  Thus,
> > implementing a new scheduler in Linux is fairly likely to require
> > significant modifications to Linux outside the new scheduler
> > itself.
> 
> "Significant modifications to Linux outside the new scheduler itself"
> may well constitute a derivative work. But that don't change the status
> of the new scheduler itself being entirely original and not a derivative
> work. Grok it now?

I don't think anyone was saying that the new scheduler is a derivative.  
It's the new Linux that includes the new scheduler that's a derivative 
of the old Linux.

-- 
Barry Margolin, [EMAIL PROTECTED]
Arlington, MA
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Re: GPL 2(b) HUH?

[Rjack]

Rahul Dhesi wrote:

Rjack <[EMAIL PROTECTED]> writes:


Let the group's readers decide this matter for themselves based
 upon what you and I have respectively posted.


Now, of course, they can do so, since I went to the trouble of 
identifying the essential missing context and pointing it out.

If you had properly preserved the context, this would not have
been necessary.


I sure appreciate your extraordinary, heroic efforts to identify
and stress the missing context of my posts. It's really great to 
have a little help from someone emphasizing my point of view. Good 
work Rahul.


Sincerely,
Rjack :)
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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Rjack <[EMAIL PROTECTED]> writes:

>Let the group's readers decide this matter for themselves based
>upon what you and I have respectively posted.

Now, of course, they can do so, since I went to the trouble of
identifying the essential missing context and pointing it out.  If you
had properly preserved the context, this would not have been necessary.
-- 
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http://rahul.rahul.net/
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Re: GPL 2(b) HUH?

[Alexander Terekhov]

Ben Pfaff wrote:
[...]
> Linux is not designed to support pluggable schedulers, and in
> fact Linus has expressly said that he does not want Linux to
> easily support dropping in alternate schedulers.  Thus,
> implementing a new scheduler in Linux is fairly likely to require
> significant modifications to Linux outside the new scheduler
> itself.

"Significant modifications to Linux outside the new scheduler itself"
may well constitute a derivative work. But that don't change the status
of the new scheduler itself being entirely original and not a derivative
work. Grok it now?

regards,
alexander.

-- 
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)
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Re: GPL 2(b) HUH?

[Alexander Terekhov]

Rahul Dhesi wrote:
[...]
> Is an automobile a mere collection of engine, wheels, and other parts?

In the GNU Republic, a car is a derivative work ("derived work") of its
gas pedal. A + B = D and all that. It follows that it is enouph to GPL a
single bolt to get the entire car ("as a whole") including the driver,
his wife, the kids, and the family dog become GPL'd as well. Give me a
break, Rahul. 

regards,
alexander.

-- 
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be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
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Re: GPL 2(b) HUH?

[Alexander Terekhov]

Rahul Dhesi wrote:
> 
> Rjack <[EMAIL PROTECTED]> writes:
> 
> >The square brackets are a "signal" used in legal citations to *indicate*
> >that the original quote has in some manner been altered. In the case
> >at hand the square brackets surrounding "[T]he first. . ." is a signal
> >that the proceeding introductory phrase has been skipped.
> 
> What's the signal that the skipping of the phrase has changed the
> meaning of the text?

C'mon, Rahul. Are you saying that the United States District Court for
the Southern District of New York (Foley Square) somehow had
jurisdiction to hear the copyright infringement case in spite of
plaintiffs' failure to register their purported United States
copyrights?

http://books.google.com/books?id=xKPj3joRBZ4C&pg=PT435&lpg=PT435&dq=copyrights+jurisdiction+registration&source=web&ots=-wyzPn2c7v&sig=7QOYsOyqITSLy-fbZcnVh30tydo&hl=en&sa=X&oi=book_result&resnum=8&ct=result

Please elaborate. TIA.

regards,
alexander.

--
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Re: GPL 2(b) HUH?

[Rjack]

Rahul Dhesi wrote:

Rjack <[EMAIL PROTECTED]> writes:

The square brackets are a "signal" used in legal citations to 
*indicate* that the original quote has in some manner been altered.

 In the case at hand the square brackets surrounding "[T]he first.
. ." is a signal that the proceeding introductory phrase has been 
skipped.


What's the signal that the skipping of the phrase has changed the 
meaning of the text?


There is no signal for "... that the skipping of the phrase has
changed the meaning of the text". The meaning is a matter for the
reader to either accept or rebut as he reviews the citation and
its context -- the citation is open for full and fair rebuttal.
What it is *not* open is the false claims of "deception" for the
citation being "out of context" -- the federal courts routinely
uses the same citation rules. The square brackets are full and
fair warning that the citation is altered.

So. . . lets get back to the heart of your posted complaint:

"If you look under other subject headings, not just this one, I'm
sure you will find where I pointed out that you took a sentence
that began "On every writ of error or appeal, the first and
fundamental question is that of jurisdiction..." and quoted it
without the "On every writ of error or appeal" part, thus making
it much more general than it was intended to be."

You are certainly free to argue that jurisdiction is *not*
intended to be a fundamental "general" requirement of the federal
courts: ". . . thus making it much more general than it was
intended to be."

Let the group's readers decide this matter for themselves based
upon what you and I have respectively posted.

Sincerely,
Rjack :)

PS: I think your next argument, "That's really not what I meant"
will truly demonstrate the spirit of William Jefferson Clinton:
"That depends on what the meaning of 'is' is".
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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Rjack <[EMAIL PROTECTED]> writes:

>The square brackets are a "signal" used in legal citations to *indicate*
>that the original quote has in some manner been altered. In the case
>at hand the square brackets surrounding "[T]he first. . ." is a signal 
>that the proceeding introductory phrase has been skipped.

What's the signal that the skipping of the phrase has changed the
meaning of the text?
-- 
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Re: GPL 2(b) HUH?

[Rjack]

Rahul Dhesi wrote:

Rjack <[EMAIL PROTECTED]> writes:


Rahul, we need something out of you besides whining "out of context
quotes" as your criticism of the various posts to a thread

...

1) Post the additional context to illustrate why readers' citations
are out of context.


Rjack, you repeatedly post on the same topics with slightly changed
subject headings. This scatters your postings and followups in many
different places, when in fact the topic has not changed. This may
explain why you ask the above question, which I already answered.

If you look under other subject headings, not just this one, I'm sure
you will find where I pointed out that you took a sentence that began
"On every writ of error or appeal, the first and fundamental question is
that of jurisdiction..." and quoted it without the "On every writ of
error or appeal" part, thus making it much more general than it was
intended to be.

You also omitted to mention that this fragment addressed something very
specific, i.e., the “doctrine of hypothetical jurisdiction.�

Yes, of course readers can look up the original. This is how
out-of-context deception works -- you deceive the reader, and defend
that deception by claiming that if readers can look up the original,
then there's nothing wrong with the out-of-context quote.


Rahul, here is the original quote I posted on 9/12/08:

"[T]he first and fundamental question is that of jurisdiction,
first, of this court, and then of the court from which the record
comes. This question the court is bound to ask and answer for
itself, even when not otherwise suggested, and without respect to
the relation of the parties to it. The requirement that jurisdiction
be established as a threshold matter spring[s] from the nature and
limits of the judicial power of the United States and is inflexible
and without exception." (citations and quotations omitted)
Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998)

For God's sake trot down to your local law library and pull down a copy
of "The Red Book" which is a manual on legal style by Bryan A. Garner.
The square brackets are a "signal" used in legal citations to *indicate*
that the original quote has in some manner been altered. In the case
at hand the square brackets surrounding "[T]he first. . ." is a signal 
that the proceeding introductory phrase has been skipped.


The square brackets clearly signaled to you, Rahul the reader, that the
material had been altered in some way -- that's their function. The
square brackets fairly screamed at you that the original context had 
been in some manner edited. Of course had you ever actually written a 
legal brief you would know this.


Your script-kiddie remarks are displaying your ignorance prominently on 
your sleeve.


PLEASE STOP WHINING ABOUT THAT WHICH IS STANDARD PRACTICE IN LEGAL 
CITATION IN THE UNITED STATES.


Sincerely,
Rjack :)






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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Rjack <[EMAIL PROTECTED]> writes:

>Rahul, we need something out of you besides whining "out of context
>quotes" as your criticism of the various posts to a thread
...
>1) Post the additional context to illustrate why readers' citations
>are out of context.

Rjack, you repeatedly post on the same topics with slightly changed
subject headings. This scatters your postings and followups in many
different places, when in fact the topic has not changed. This may
explain why you ask the above question, which I already answered.

If you look under other subject headings, not just this one, I'm sure
you will find where I pointed out that you took a sentence that began
"On every writ of error or appeal, the first and fundamental question is
that of jurisdiction..." and quoted it without the "On every writ of
error or appeal" part, thus making it much more general than it was
intended to be.

You also omitted to mention that this fragment addressed something very
specific, i.e., the “doctrine of hypothetical jurisdiction.”

Yes, of course readers can look up the original. This is how
out-of-context deception works -- you deceive the reader, and defend
that deception by claiming that if readers can look up the original,
then there's nothing wrong with the out-of-context quote.
-- 
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Re: GPL 2(b) HUH?

[Barry Margolin]

In article <[EMAIL PROTECTED]>,
 Hyman Rosen <[EMAIL PROTECTED]> wrote:

> Barry Margolin wrote:
> > It's not the scheduler that's a derivative, it's the new Linux kernel 
> > that results from replacing the scheduler in the old kernel.  I.e.
> > 
> > Linux - schedulerA + schedulerB => derivative of Linux.
> 
> But the new scheduler itself is not entangled with the copyright
> of Linux. And the combined work of Linux + new scheduler is a
> derivative of Linux only if the changes to use the new scheduler
> involved enough modifications to Linux to consider them a significant
> work of authorship.

In my opinion, the scheduler is an integral part of Linux, just as 
Chapter 1 is an integral part of a Harry Potter book.  An operating 
system is NOT an anthology.

Application programs, on the other hand, are independent.  The 
collection of all the applications included in a Linux distribution 
would be a collective work, analogous to an anthology.

-- 
Barry Margolin, [EMAIL PROTECTED]
Arlington, MA
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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Hyman Rosen <[EMAIL PROTECTED]> writes:

>Again, I assert that a program written to dynamically link with
>a GPLed library, which requires that library for its operation,
>may be distributed on any terms its author chooses. The FSF says
>that such a program must be distributed under the GPL. Wondering
>about how the GPLed library gets to the user's machine isn't
>germane as long as it gets there as authorized by the GPL.

OK, using your example, suppose the author of HyProg distributes it
along with libGNU on a CD-ROM. Mere aggregation of both together on the
CD-ROM doesn't make HyProg subject to the GPL.  So far so good.

Now the end-user gets the CD-ROM, follows the instructions, and HyProg
is now dynamically loaded and linked with libGNU.

Who caused libGNU to load into memory? The end-user or the author? I
submit that both did, because each is a link in the chain without which
the final load of libGNU would not have occurred.

But whom will the courts hold responsible in a legal sense?  I submit
that this question has not yet been answered in the case law. If the
author is held responsible, then the author must comply with the GPL
throughout the sequence. If the author is distributing libGNU and HyProg
together such that they will be used together, and HyProg requires
libGNU, then the author has ventured beyond mere aggregation.  The
HyProg + libGNU combination is now a single work, because both pieces
are loaded together when the author's instructions are followed.

Is this a derivative work or a mere collection?  

Is an automobile a mere collection of engine, wheels, and other parts?
-- 
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http://rahul.rahul.net/
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Re: GPL 2(b) HUH?

[Rjack]

Rahul Dhesi wrote:

Hyman Rosen <[EMAIL PROTECTED]> writes:


>> (Rjack, we need some out-of-context quotes to support my
arguments here.  Where are you when we need you?) <<

Rahul, we need something out of you besides whining "out of context
quotes" as your criticism of the various posts to a thread. You
sound like Eben Moglen chanting "a license is not a contract" for
eight years. It never made it true in the federal courts, although
tens of thousands of Free Softies like yourself chanted the mantra
millions of times. Chanting "out of context quotes" doesn't make
things out of context. If you wish to claim "out of context" then
it's your burden to provide the missing context. I often post links
to the cases from which my citations are taken. The bandwidth of
the newsgroups obviously doesn't support posting the cases
verbatim. If you are too lazy or too stupid to either follow the
links or use your own volition to find the source of the cited
material then that's your problem -- Google has all encompassing
eyes.

I have observed from your previous posts that your inability to
understand the broader implications of some citations seriously
hinders your capacity to grasp what posters are claiming. I don't
know whether there is a language barrier involved but you should:

1) Post the additional context to illustrate why readers' citations
are out of context.

2) Let the readers judge for themselves from your publication 
whether your assertion is true.


3) Cease the little not-so-clever ad hominem digs and just STFU.

Sincerely,
Rjack :)
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Re: GPL 2(b) HUH?

[Ben Pfaff]

Hyman Rosen <[EMAIL PROTECTED]> writes:

> Barry Margolin wrote:
>> It's not the scheduler that's a derivative, it's the new Linux
>> kernel that results from replacing the scheduler in the old kernel.
>> I.e.
>>
>> Linux - schedulerA + schedulerB => derivative of Linux.
>
> But the new scheduler itself is not entangled with the copyright
> of Linux. And the combined work of Linux + new scheduler is a
> derivative of Linux only if the changes to use the new scheduler
> involved enough modifications to Linux to consider them a significant
> work of authorship.

Linux is not designed to support pluggable schedulers, and in
fact Linus has expressly said that he does not want Linux to
easily support dropping in alternate schedulers.  Thus,
implementing a new scheduler in Linux is fairly likely to require
significant modifications to Linux outside the new scheduler
itself.
-- 
Ben Pfaff 
http://benpfaff.org
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Rahul Dhesi wrote:

Why did you change the example? Is it because the previous example
didn't work correctly?


No, it's to try to remove as many extraneous issues as possible.

Again, I assert that a program written to dynamically link with
a GPLed library, which requires that library for its operation,
may be distributed on any terms its author chooses. The FSF says
that such a program must be distributed under the GPL. Wondering
about how the GPLed library gets to the user's machine isn't
germane as long as it gets there as authorized by the GPL.
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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Hyman Rosen <[EMAIL PROTECTED]> writes:

>Rahul Dhesi wrote:
>> I think you missed the part where HyProg users were copying libGNU as
>> the HyProg author's agents.

>It's not illegal to copy libGNU as authorized by the GPL.
>If I wanted to, I could ship, perhaps on separate media,
>a copy of libGNU and its sources along with HyProg.

Why did you change the example? Is it because the previous example
didn't work correctly?
-- 
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http://rahul.rahul.net/
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Barry Margolin wrote:
It's not the scheduler that's a derivative, it's the new Linux kernel 
that results from replacing the scheduler in the old kernel.  I.e.


Linux - schedulerA + schedulerB => derivative of Linux.


But the new scheduler itself is not entangled with the copyright
of Linux. And the combined work of Linux + new scheduler is a
derivative of Linux only if the changes to use the new scheduler
involved enough modifications to Linux to consider them a significant
work of authorship.
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Rahul Dhesi wrote:

I think you missed the part where HyProg users were copying libGNU as
the HyProg author's agents.


It's not illegal to copy libGNU as authorized by the GPL.
If I wanted to, I could ship, perhaps on separate media,
a copy of libGNU and its sources along with HyProg.
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Re: GPL 2(b) HUH?

[David Kastrup]

Rjack <[EMAIL PROTECTED]> writes:

> Uh. Linux has hudreds of contributors. Did hundreds of authors
> contribute their copyrighted works to Harry Potter?

Actually, apart from "copyrighted", that's what culture is all about.
In Homer's times, it took decades and life times for cultural works to
spread, take hold, and make an impact through grassroots.

In our times of modern communication and copyright, a life time is not
enough.  You have to restrict yourself to material from the beginning of
last century.  Or pay more money than grassroots could afford.

So culture is no longer something that can grow outside of greenhouses,
in the wild.

-- 
David Kastrup, Kriemhildstr. 15, 44793 Bochum
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Re: GPL 2(b) HUH?

[Barry Margolin]

In article <[EMAIL PROTECTED]>,
 Hyman Rosen <[EMAIL PROTECTED]> wrote:

> Barry Margolin wrote:
> > A new version of Linux with a different scheduler serves the same 
> > purpose: they're both operating system kernels.
> 
> But the new scheduler is not a transformed version of any other code.
> Both are required for a work to be derivative.

It's not the scheduler that's a derivative, it's the new Linux kernel 
that results from replacing the scheduler in the old kernel.  I.e.

Linux - schedulerA + schedulerB => derivative of Linux.

-- 
Barry Margolin, [EMAIL PROTECTED]
Arlington, MA
*** PLEASE post questions in newsgroups, not directly to me ***
*** PLEASE don't copy me on replies, I'll read them in the group ***
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Re: GPL 2(b) HUH?

[Barry Margolin]

In article <[EMAIL PROTECTED]>,
 Rjack <[EMAIL PROTECTED]> wrote:

> Barry Margolin wrote:
> > In article <[EMAIL PROTECTED]>,
> >  Hyman Rosen <[EMAIL PROTECTED]> wrote:
> > 
> >> Ciaran O'Riordan wrote:
> >>> But if you looked at Linux, decided the scheduler was crap, and then 
> >>> wrote a
> >>> completely new scheduler for Linux, then that would be a derivative work
> >> No, it would not. By statute, in the U.S., a derivative work is a
> >> transformation of another work which retains its original purpose -
> > 
> > A new version of Linux with a different scheduler serves the same 
> > purpose: they're both operating system kernels.
> > 
> >> turning a short story into a movie script, or translating into a
> >> different language. See the Harry Potter case, where the judge said
> >> that turning narratives into a reference text, even with massive
> >> copying from the original sources, does not make the reference text
> >> a derivative work of the novels, because the reference does not serve
> >> the same purpose as the novels even though it is a transformation of
> >> them.
> > 
> > I think the real-world analogy to the scenario Ciaran described would be 
> > if you took the Harry Potter text, removed a chapter, and replaced it 
> > with a new chapter that you wrote.  What would the status of the 
> > resulting book be?  Is it a derivative of the original Harry Potter, or 
> > a compilation of the originnal chapters (minus 1) and the new chapter?
> > 
> 
> Uh. Linux has hudreds of contributors. Did hundreds of authors 
> contribute their copyrighted works to Harry Potter?

No, but I don't see how that's relevant.  Whether the original copyright 
was owned by a single person or a collective is irrelevant to the status 
of the result of modifying it.

Are you trying to suggest that Linux is more like an anthology, and 
replacing the scheduler is like replacing one of the stories in the 
anthology?  I think it's more like a novel, since the components are not 
generally standalone, they're integral pieces of the whole.

-- 
Barry Margolin, [EMAIL PROTECTED]
Arlington, MA
*** PLEASE post questions in newsgroups, not directly to me ***
*** PLEASE don't copy me on replies, I'll read them in the group ***
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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Hyman Rosen <[EMAIL PROTECTED]> writes:

>Copyright is what it is, not what you want it to be, unless
>what you want it to be is what it is.

I think you missed the part where HyProg users were copying libGNU as
the HyProg author's agents.

But still, law is quite dynamic.  You will recall that the courts
created the Fair Use doctrine out of thin air, and only later did
Congress codify it into law. The much-maligned executive privilege also
came out of thin air.  (Rjack, we need some out-of-context quotes to
support my arguments here.  Where are you when we need you?)
-- 
Rahul
http://rahul.rahul.net/
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Rahul Dhesi wrote:

I think a court trying to rule in an unsettled area of law might well
pay attention to public policy considerations of the type that the CAFC
addressed in the JMRI case, i.e., how best to allow authors of GPL
software to achieve their goals within the letter and spirit of existing
copyright law.


But that involved actual copying and distribution of software
licensed under the Artistic License. You'll have a much tougher
time convincing a court that dynamic linking is anything like
that.

Copyright is what it is, not what you want it to be, unless
what you want it to be is what it is.

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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Hyman Rosen <[EMAIL PROTECTED]> writes:

>Can you explain where the infringement is occurring? The user of
>HyProg has libGNU on his computer. The license of libGNU, the GPL,
>says "You may make, run and propagate covered works that you do
>not convey, without conditions so long as your license otherwise
>remains in force." When the user of HyProg activates it, and it
>causes libGNU to be copied into memory, that is an action allowed
>by the GPL because libGNU is not being conveyed.

You may have a good argument there, if the user already had libGNU, and
later acquired HyProg. Having once acquired libGNU legally, he should be
able to run any program that uses libGNU.

However, if HyProg is distributed in such a way that it causes many
users to download libGNU solely to run HyProg, then there is a
potentially winning argument that people downloading libGNU are in
effect acting as the HyProg author's agents, thus making HyProg's author
himself subject to the GPL.

This is all very hypothetical (though I'm sure Rjack will come up with
more out-of-context quotes to prove otherwise).

I think a court trying to rule in an unsettled area of law might well
pay attention to public policy considerations of the type that the CAFC
addressed in the JMRI case, i.e., how best to allow authors of GPL
software to achieve their goals within the letter and spirit of existing
copyright law.
-- 
Rahul
http://rahul.rahul.net/
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Rahul Dhesi wrote:

Is HyProg causing the shared library to be copied into memory


Yes.


was HyProg written to require that specific shared library libGNU


Yes.


is there no other way of using HyProg


Yes.


If so, then the author of HyProg might be liable for contributory

> infringement.

Can you explain where the infringement is occurring? The user of
HyProg has libGNU on his computer. The license of libGNU, the GPL,
says "You may make, run and propagate covered works that you do
not convey, without conditions so long as your license otherwise
remains in force." When the user of HyProg activates it, and it
causes libGNU to be copied into memory, that is an action allowed
by the GPL because libGNU is not being conveyed.
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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Hyman Rosen <[EMAIL PROTECTED]> writes:

>Let's review. Someone creates a library and distributes it under
>the GPL. Let's call it libGNU, and suppose that it exists in DLL
>form. I create a program that dynamically links to libGNU and
>uses its services. Let's call it HyProg. I assert that I may
>distribute copies of HyProg unaccompanied by libGNU under any
>terms I wish. The FSF asserts that HyProg must be distributed
>under the GPL. I do not believe that there is any legal basis
>for the FSF's claim. If you do, please explain.

I am not very familiar with the "DLL form". Wikipedia, without citing
references or sources, says this is Microsoft's implementation of shared
libraries.  I will assume you meant "shared library", since your
argument does not otherwise seem to be Microsoft-specific.

Is HyProg causing the shared library to be copied into memory, and was
HyProg written to require that specific shared library libGNU, and is
there no other way of using HyProg?  If so, then the author of HyProg
might be liable for contributory infringement. But if libGNU is just one
of many shared libraries that could be used, then the author of HyProg
is probably off the hook.

Also, the claim would come from the library's copyright owner, not the
FSF, unless the FSF was the copyright owner.
-- 
Rahul
http://rahul.rahul.net/
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Rahul Dhesi wrote:

Usually, "owner of a copy" refers to a copy that the copyright owner or
his representative or retailer already made, and then physically gave to
you, e.g., on CD-ROM.  I doubt that you are the owner of a copy if you
made the copy yourself.


You're wrong, but in any case, if the library is under the GPL,
the GPL says "You may make, run and propagate covered works that
you do not convey, without conditions so long as your license
otherwise remains in force."

Let's review. Someone creates a library and distributes it under
the GPL. Let's call it libGNU, and suppose that it exists in DLL
form. I create a program that dynamically links to libGNU and
uses its services. Let's call it HyProg. I assert that I may
distribute copies of HyProg unaccompanied by libGNU under any
terms I wish. The FSF asserts that HyProg must be distributed
under the GPL. I do not believe that there is any legal basis
for the FSF's claim. If you do, please explain.
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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Hyman Rosen <[EMAIL PROTECTED]> writes:

> (a)  Making of Additional Copy or Adaptation by Owner of Copy.

Usually, "owner of a copy" refers to a copy that the copyright owner or
his representative or retailer already made, and then physically gave to
you, e.g., on CD-ROM.  I doubt that you are the owner of a copy if you
made the copy yourself.
-- 
Rahul
http://rahul.rahul.net/
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Rahul Dhesi wrote:

Causing the linked library to be copied into memory is governed by
copyright law. Unless you can find an excpption (such as fair use or
implied license), causing such copying would infringe any copyright on
the library.


Well, here's the statute:

§ 117. Limitations on exclusive rights: Computer programs
(a)  Making of Additional Copy or Adaptation by Owner of Copy.—
Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to make
or authorize the making of another copy or adaptation of that
computer program provided:
(1) that such a new copy or adaptation is created as an essential
step in the utilization of the computer program in conjunction with
a machine and that it is used in no other manner

So that's OK.


You can't argue implied license if the library's license is overtly
violated. You can't argue fair use if the library author's goals (as
described in the GPL and its preamble) are cleverly and deliberately
being undermined.


I'm not arguing either of those things. I'm saying simply that a
program dynamically linked to a library does not require permission
of any sort from the copyright holders of the library. The license
terms of the library are completely irrelevant to the program.
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Re: GPL 2(b) HUH?

[Rahul Dhesi]

Hyman Rosen <[EMAIL PROTECTED]> writes:

>On what basis is a program which links dynamically to a
>library a combined work such that the program would be subject
>to the GPL if the library is?

I think you diverted from the original topic.

But still:

Causing the linked library to be copied into memory is governed by
copyright law. Unless you can find an excpption (such as fair use or
implied license), causing such copying would infringe any copyright on
the library.

You can't argue implied license if the library's license is overtly
violated. You can't argue fair use if the library author's goals (as
described in the GPL and its preamble) are cleverly and deliberately
being undermined.
-- 
Rahul
http://rahul.rahul.net/
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Re: GPL 2(b) HUH?

[Alexander Terekhov]

Rahul Dhesi wrote:
[...]
>   ***NEITHER GPL V2 NOR GPL V3 MENTIONS DERIVATIVE WORKS.***

Go to doctor, Rahul.

--
... a "work based on the Program" means either the Program or any
***derivative work*** under copyright law ... the Program or its
***derivative works***  ...
--

The above is from the GPL V2.

And here's the GPL V3:

--
To “modify” a work means to copy from or adapt all or part of the work
in a fashion requiring copyright permission, other than the making of an
exact copy. The resulting work is called a “modified version” of the
earlier work or a work “based on” the earlier work.
--

Translated from the Gu-NÜ-speak it means:

"To “modify” a work means to create a derivative work".

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Rahul Dhesi wrote:

  ***NEITHER GPL V2 NOR GPL V3 MENTIONS DERIVATIVE WORKS.***


However, it does appear that the FSF believes that a program
written to interoperate with another program is somehow tied
sufficiently to that other program such that if the other is
GPLed then the whole program is bound by the GPL. For example,
here is part of a header comment that the FSF suggests putting
into files:


Linking [name of your program] statically or dynamically
with other modules is making a combined work based on
[name of your program]. Thus, the terms and conditions of
the GNU General Public License cover the whole combination.

On what basis is a program which links dynamically to a
library a combined work such that the program would be subject
to the GPL if the library is? When you copy or distribute the
program, you do not necessarily distribute the library - that
is part of the point of dynamic linking. It's an odd sort of
combined work which does not include the thing with which it
is alleged to be combined! Thus, I have seen arguments instead
that the program is a derivative work of the library. That's
why derivative works come up in the discussion.
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Re: GPL 2(b) HUH?

[Rjack]

Rahul Dhesi wrote:


Here is what the CAFC said in the JMRI case:



Here is what the Court of Appeals for the Federal Circuit said (while 
sitting en banc) about its authority in copyright law matters:


"The freedom of the district courts to follow the guidance of their
particular circuits in all but the substantive law fields assigned
exclusively to this court [patents law] is recognized in the foregoing 
opinions and in this case."; ATARI, INC., v. JS & A GROUP, INC., 747 
F.2d 1422, 223 USPQ 1074(Fed. Cir. 1984)(en banc).


There is about a one in one billion chance that *any* district court
*anywhere* will heed the ruling of the CAFC while ignoring the the 
controlling law of their respective appellate circuit courts. The JMRI 
decision isn't worth the paper it's printed on and you known it.


The CAFC directly contradicted the Ninth Circuit and district judge 
White. If you think that on remand, Judge White in the JMRI case is 
going follow a CAFC ruling that contradicts the authority of the Ninth 
Circuit, you've probably been smoking something illegal.


Sincerely,
Rjack :)
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Re: GPL 2(b) HUH?

[Hyman Rosen]

David Kastrup wrote:

All the library parts accomplish their intended purpose in the binary,
and compiling and linking their source transforms them into the binary.


Here is a quote from the Compendium II, which the U.S. Copyright Office
uses as a manual of procedure:


323 Derivative computer programs. A derivative computer program is
one that is based on or incorporates material from a previously
published or registered or public domain program that has been revised,
augmented, abridged, or otherwise modified so that the modifications,
as a whole, represent an original work of authorship.

The automated transformations involved in going from the source code of a
library to a binary executable are not "an original work of authorship".


In short: I read and understand your words and explanations, but they
don't seem to apply at all.


That is because you have an erroneous idea of what it means for a work to
be derivative in the eyes of copyright law. Perhaps it is because you do
not understand that the law sometimes uses English words in a technical
sense such that their conventional dictionary definitions do not apply.
In the everyday sense, one might say that a program which incorporates a
library is derivative of that library, but in the technical sense used by
copyright law, it is not.
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Re: GPL 2(b) HUH?

[Alfred M. Szmidt]

   But being serious, writing a generic scheduler isn't practical.  That would
   be like writing a generic "chapter 8" that can replace chapter 8 of not just
   Harry Potter but also many other too :-)

Chapter 8

See next chapter.


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Re: GPL 2(b) HUH?

[Rahul Dhesi]

David Kastrup <[EMAIL PROTECTED]> writes:
...
>In short: I read and understand your words and explanations, but they
>don't seem to apply at all.

Your fundamental error was assuming that anything in this discussion
thread made any sense. Rjack sent you all off on the wrong course by
quoting a bunch of irrelevant fragments about derivative works.

Let me yell at you just a little:

  ***NEITHER GPL V2 NOR GPL V3 MENTIONS DERIVATIVE WORKS.***

Look them up.

GPL v2 says this:

  b) You must cause any work that you distribute or publish, that in
  whole or in part contains or is derived from the Program or any part
  thereof, to be licensed as a whole at no charge to all third parties
  under the terms of this License.

Here is what the CAFC said in the JMRI case:

  The choice to exact consideration in the form of compliance with the
  open source requirements of disclosure and explanation of changes,
  rather than as a dollar-denominated fee, is entitled to no less legal
  recognition.  Indeed, because a calculation of damages is inherently
  speculative, these types of license restrictions might well be
  rendered meaningless absent the ability to enforce through injunctive
  relief.

Thus an open source license can require "disclosure and explanation of
changes", even though this is not a right that a copyright owner gets
under copyright law, and violation of the license can result in
injunctive relief.

In other words, an open source license can impose requirements that go
beyond those promised to the copyright holder by copyright law, and the
remedy for violating those requirements can be injunctive relief.
-- 
Rahul
http://rahul.rahul.net/
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Re: GPL 2(b) HUH?

[Ciaran O'Riordan]

If your scheduler was truly generic and could (even just theoretically) be
plugged into many kernels, then you might be free from copyright
obligations.

But being serious, writing a generic scheduler isn't practical.  That would
be like writing a generic "chapter 8" that can replace chapter 8 of not just
Harry Potter but also many other too :-)

Making a generic sound file is practical, because it's not so intimately
tied in, so as I said in my initial examples, a generic sound file could be
inserted into the/any kernel without becoming GPL'd.  But a scheduler,
excluding toy proof-of-whacky-concept projects, no.

Speaking of copyright and Harry Potter:
http://stallman.org/harry-potter.html

-- 
Ciarán O'Riordan, +32 477 36 44 19, http://ciaran.compsoc.com/

Support free software, join FSFE's Fellowship: http://fsfe.org

Recent blog entries:
http://fsfe.org/fellows/ciaran/ciaran_s_free_software_notes/links_gnu_osm_gnewsense_bangalore
http://fsfe.org/fellows/ciaran/ciaran_s_free_software_notes/japanese_pdfs_part_2_xetex
http://fsfe.org/fellows/ciaran/ciaran_s_free_software_notes/links_translation_bsod_orwell_releases
http://fsfe.org/fellows/ciaran/ciaran_s_free_software_notes/fsfe_meeting_tonight_in_brussels_thurs_7th


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Re: GPL 2(b) HUH?

[Tim Smith]

In article <[EMAIL PROTECTED]>,
 [EMAIL PROTECTED] (Rahul Dhesi) wrote:
> David Kastrup <[EMAIL PROTECTED]> writes:
> ...
> >In short: I read and understand your words and explanations, but they
> >don't seem to apply at all.
> 
> Your fundamental error was assuming that anything in this discussion
> thread made any sense. Rjack sent you all off on the wrong course by
> quoting a bunch of irrelevant fragments about derivative works.
> 
> Let me yell at you just a little:
> 
>   ***NEITHER GPL V2 NOR GPL V3 MENTIONS DERIVATIVE WORKS.***

Sure, but nevertheless, derivative works are relevant, because the FSF 
rather vehemently insists that the GPL does not restrict any activities 
that do not require permission under copyright law.

Hence, when considering doing something with GPL code, you have to ask 
yourself "Am I doing anything that actually requires permission from the 
copyright owner?".  If the answer is "no", then GPL is irrelevant to 
what you are doing.

For example, if I want to modify some GPL code and run it on my 
computer, I don't have to concern myself with anything in GPL, because 
17 USC 117 tells me I don't need permission.  (The GPL happens to say 
what I want to do is OK, which is nice, so I'm doubly covered).

Another example: if I want to sell my Kindle, which contains GPL code 
(it's built on Linux), I don't have to worry about whether or not the 
GPL makes me responsible for providing source code to the buyer.  17 USC 
109 tells me I don't need permission of the copyright owner, so again, I 
don't have to care what GPL says.

Answering the "do I need permission?" question often requires figuring 
out if you are making a derivative work or not.

-- 
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Re: GPL 2(b) HUH?

[Tim Smith]

In article <[EMAIL PROTECTED]>,
 Ciaran O'Riordan <[EMAIL PROTECTED]> wrote:
> But if you looked at Linux, decided the scheduler was crap, and then wrote a
> completely new scheduler for Linux, then that would be a derivative work,
> AFAICT.  Whether you link or compile it all together, or whether you output
> one file or multiple, wouldn't be a deciding factor, AFAIK.

OK, but how about this.  Suppose *I* look at the schedular, decide that 
it is crap, and so I modify Linux so that the scheduler can be loaded at 
run time.  To make a scheduler using my system, you write a function in 
C named my_scheduler, with an interface that I define.  You compile that 
to an object file using "gcc -o my_scheduler.c".  To load the scheduler, 
you run a new command I provide, "load_scheduler", giving it the .o file 
containing your scheduler code.

I have designed my interface to be not Linux specific.  It represents a 
general abstraction of scheduling, and maps Linux scheduling parameters 
and settings to more abstract things.

HYPOTHETICAL #1.  I also write my new scheduler, and distribute it, 
along with my patches that modify the kernel to add the schedule loader.

Is my scheduler a derivative work of the kernel?

HYPOTHETICAL #2.  I do not write a scheduler.  I limit my contribution 
to modifying the kernel to work with schedulers following my 
specification.  You write a scheduler, following my specification.

Is your scheduler a derivative work of Linux?

HYPOTHETICAL #3.  Someone over at Microsoft sees my work, and decides 
that loadable, generic schedulers are cool.  Microsoft puts this feature 
in the next version of Windows.  They do not take any code from my 
implementation.  All they do is use the same interface as mine.  They do 
such a good job that binary schedular files for Linux work out of the 
box with Windows.

Does this change the answer to #1 or #2?  Does it matter whether or not 
your scheduler or mine was written after Microsoft makes the 
aforementioned version of Windows available?

-- 
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Re: GPL 2(b) HUH?

[David Kastrup]

Hyman Rosen <[EMAIL PROTECTED]> writes:

> David Kastrup wrote:
>> prgm clearly is a derivative work of all the various modules.
>
> No it isn't. A derivative work is a transformed form of an
> original work that accomplishes the same purpose.

All the library parts accomplish their intended purpose in the binary,
and compiling and linking their source transforms them into the binary.

> For example, translation to another language, or writing a screenplay
> of a novel. In the Harry Potter decision, the judge ruled that the
> Lexicon was not a derivative work even though it had copious amounts
> of direct copying from the novels and sourcebooks, because the Lexicon
> did not accomplish the same thing as the other books, namely to tell
> the story of Harry Potter.

But compiling and linking a library without patching it all around
definitely accomplishes the intended purpose of the library.

In short: I read and understand your words and explanations, but they
don't seem to apply at all.

-- 
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Re: GPL 2(b) HUH?

[Rjack]

Barry Margolin wrote:

In article <[EMAIL PROTECTED]>,
 Hyman Rosen <[EMAIL PROTECTED]> wrote:


Ciaran O'Riordan wrote:

But if you looked at Linux, decided the scheduler was crap, and then wrote a
completely new scheduler for Linux, then that would be a derivative work

No, it would not. By statute, in the U.S., a derivative work is a
transformation of another work which retains its original purpose -


A new version of Linux with a different scheduler serves the same 
purpose: they're both operating system kernels.



turning a short story into a movie script, or translating into a
different language. See the Harry Potter case, where the judge said
that turning narratives into a reference text, even with massive
copying from the original sources, does not make the reference text
a derivative work of the novels, because the reference does not serve
the same purpose as the novels even though it is a transformation of
them.


I think the real-world analogy to the scenario Ciaran described would be 
if you took the Harry Potter text, removed a chapter, and replaced it 
with a new chapter that you wrote.  What would the status of the 
resulting book be?  Is it a derivative of the original Harry Potter, or 
a compilation of the originnal chapters (minus 1) and the new chapter?




Uh. Linux has hudreds of contributors. Did hundreds of authors 
contribute their copyrighted works to Harry Potter?



Sincerely,
Rjack :)
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Barry Margolin wrote:
A new version of Linux with a different scheduler serves the same 
purpose: they're both operating system kernels.


But the new scheduler is not a transformed version of any other code.
Both are required for a work to be derivative.
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Re: GPL 2(b) HUH?

[Barry Margolin]

In article <[EMAIL PROTECTED]>,
 Hyman Rosen <[EMAIL PROTECTED]> wrote:

> Ciaran O'Riordan wrote:
> > But if you looked at Linux, decided the scheduler was crap, and then wrote a
> > completely new scheduler for Linux, then that would be a derivative work
> 
> No, it would not. By statute, in the U.S., a derivative work is a
> transformation of another work which retains its original purpose -

A new version of Linux with a different scheduler serves the same 
purpose: they're both operating system kernels.

> turning a short story into a movie script, or translating into a
> different language. See the Harry Potter case, where the judge said
> that turning narratives into a reference text, even with massive
> copying from the original sources, does not make the reference text
> a derivative work of the novels, because the reference does not serve
> the same purpose as the novels even though it is a transformation of
> them.

I think the real-world analogy to the scenario Ciaran described would be 
if you took the Harry Potter text, removed a chapter, and replaced it 
with a new chapter that you wrote.  What would the status of the 
resulting book be?  Is it a derivative of the original Harry Potter, or 
a compilation of the originnal chapters (minus 1) and the new chapter?

-- 
Barry Margolin, [EMAIL PROTECTED]
Arlington, MA
*** PLEASE post questions in newsgroups, not directly to me ***
*** PLEASE don't copy me on replies, I'll read them in the group ***
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Re: GPL 2(b) HUH?

[Hyman Rosen]

David Kastrup wrote:

prgm clearly is a derivative work of all the various modules.


No it isn't. A derivative work is a transformed form of an
original work that accomplishes the same purpose. For example,
translation to another language, or writing a screenplay of a
novel. In the Harry Potter decision, the judge ruled that the
Lexicon was not a derivative work even though it had copious
amounts of direct copying from the novels and sourcebooks,
because the Lexicon did not accomplish the same thing as the
other books, namely to tell the story of Harry Potter.
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Re: GPL 2(b) HUH?

[David Kastrup]

Rjack <[EMAIL PROTECTED]> writes:

> It is interesting to note that compiling the source code of standard
> program packages of independently authored c code (and assembler) like
> the Linux kernel does not create a derivative work. Some people think
> that compiling module1.c, module2.c, . . . into "-o prgm" translates
> the source code into a derivative work.
>
> e.g.: gcc -o prgm module1.c module2.c . . .
>
> There is absolutely *no* spark of originality added as gcc assembles
> the source code into an executable -- something thousands of people do
> every day. Gcc assembles the c code modules into a collective whole
> (the executable) according to fixed, predetermined rules with no
> assistance from the author.

Sure.  gcc is operating on behalf of the caller and assembles prgm from
various modules.  prgm clearly is a derivative work of all the various
modules.

Now gcc is just a tool, so who is _responsible_ for creating this
derivative?  Is the user calling gcc on his own volition, or is he
acting as an agent of the person who sold him module1.c?  This depends
on whether other possible reasons to buy module1.c exist, so that the
decision to call gcc can be considered reasonably independent from
buying module1.c.

If that is the case, creation of the derivative binary is clearly not
tied to the sale of module1.c.

Where this is not the case, things are quite less clearcut.
"contributory infringement" is a relevant buzzphrase in this context,
and trying your favorite search engine will show you that there is much
talk and very little hard evidence in one direction or the other.

-- 
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Rjack wrote:

Was the Lexicon written in C++ or Python?


Python, of course. And the comments were in Parseltongue.
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Re: GPL 2(b) HUH?

[Rjack]

Hyman Rosen wrote:

JEDIDIAH wrote:

On 2008-09-17, Hyman Rosen <[EMAIL PROTECTED]> wrote:

JEDIDIAH wrote:

...it also includes it's own versions of fundemental libraries.

...which still does not make the program a derivative work.


Someone just tried the same sort of thing with JK Rowling and lost.


Um, did you see that the judge in that case specifically ruled
that the Lexicon was *not* a derivative work? You almost make
me want to go off into Terekhovian five-fold repetition! :-)


Was the Lexicon written in C++ or Python?
He. He.
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Re: GPL 2(b) HUH?

[Hyman Rosen]

JEDIDIAH wrote:

On 2008-09-17, Hyman Rosen <[EMAIL PROTECTED]> wrote:

JEDIDIAH wrote:

...it also includes it's own versions of fundemental libraries.

...which still does not make the program a derivative work.


Someone just tried the same sort of thing with JK Rowling and lost.


Um, did you see that the judge in that case specifically ruled
that the Lexicon was *not* a derivative work? You almost make
me want to go off into Terekhovian five-fold repetition! :-)
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Re: GPL 2(b) HUH?

[Rjack]

JEDIDIAH wrote:

On 2008-09-17, Hyman Rosen <[EMAIL PROTECTED]> wrote:

JEDIDIAH wrote:

...it also includes it's own versions of fundemental libraries.

...which still does not make the program a derivative work.


Someone just tried the same sort of thing with JK Rowling and lost.



Was JK Rowling's work compiled and linked to run on an Intel or PPC 
platform? He. He.


Sincerely,
Rjack :)
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Re: GPL 2(b) HUH?

[JEDIDIAH]

On 2008-09-17, Hyman Rosen <[EMAIL PROTECTED]> wrote:
> JEDIDIAH wrote:
>> ...it also includes it's own versions of fundemental libraries.
>
> ...which still does not make the program a derivative work.

Someone just tried the same sort of thing with JK Rowling and lost.

-- 

Nothing today, likely nothing since we tamed fire, 
is genuinely new: culture, like science and  |||
technology grows by accretion, each new creator / | \
building on the works of those that came before.

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 US Court of Appeals
 9th Circuit


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Re: GPL 2(b) HUH?

[Rjack]

Ciaran O'Riordan wrote:

Ciaran O'Riordan <[EMAIL PROTECTED]> writes:

...but if someone wants to benefit from free software without
contributing, then the legal mess created by modern copyright law is
there own problem.



If someone wants to steal other peoples' rights by illegally attempting
to control their work with a license like the GPL is their own problem.

Sincerely.
Rjack :)

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Re: GPL 2(b) HUH?

[Rjack]

Ciaran O'Riordan wrote:

Whether X is a derivative of Y is determined at time of writing, not 
at time of linking or compiling.


Not true.

"1 Nimmer on Copyright § 3.02 ('[T]he originality called for in a
collective work consists of the collection and assembling of
pre-existing works, while derivative work originality lies in the
manner in which a preexisting work is transformed . . . .')."

From Nimmer (supra):

"... derivative work originality lies in the manner in which a
preexisting work is transformed"

So, the *manner* in which the transformation takes place determines
whether a derivative work is created.

A one to one mapping from one set of symbols (source code) symbols into
a second set of symbols (machine code) with an existing, predetermined
algorithm (gcc) contributes no creative originality to the work since
anyone of millions of people who pushe the button invoking gcc get an
identical result. (I certainly didn't write gcc so I have no creative
contribution there.)

A one to one mapping from one set of symbols into a second set of
symbols is just paraphrasing the general definition of an algorithmic
mathematical function.

If I have permission to copy your source code and I run a gcc
"translation" on it, I have created a new copy and not a new derivative
work.

Linux consists of a collection of hundreds of independently copyrighted
works (source code modules) -- it is truly a "collective work".

If I take those independent works add a couple of my own independent
works and re-arrange the source tree I have a created a new collective work.

If I write a new Makefile and compile and link the new source tree with
gcc I have *not* created a new derivative work -- simply an unoriginal
algorithmic translation of an existing collective work.

Sincerely,
Rjack :)
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Re: GPL 2(b) HUH?

[Hyman Rosen]

Ciaran O'Riordan wrote:

No, it would not. By statute, in the U.S., a derivative work is a

That's not about software, and that's only one jurisdiction.


Unless you can find something in the statute that defines derivative
works of programs differently than derivative works in general, the
general definition will apply. And granted that the U.S. is only one
jurisdiction, it's a pretty big one, and it's the home country of the
GPL.


The example you're replying to was a scheduler which is an intimate

> part of a kernel, definitely not a separate program that interacts
> with the kernel.

So what? The scheduler code does not incorporate the kernel into
itself, it is just designed to work together with the kernel. The
scheduler code itself is therefore not tied to the copyrights of
the kernel.

Let's do the analogy thing again. Suppose I write a mathematical
paper in which I prove a theorem. As it happens, the proof of this
theorem involves a series of steps each of which is proved using
existing theorems, and for each step, I say that some statement is
true and include a citation to the paper proving the sub-theorem.
I've used obscure results, so that even to a specialist, my paper
cannot be understood without going to the references and reading
them. Nevertheless, the copyright on the paper is mine alone. It
is not a derivative work or compilation or collection of the papers
I cite.
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Re: GPL 2(b) HUH?

[Hyman Rosen]

JEDIDIAH wrote:

...it also includes it's own versions of fundemental libraries.


...which still does not make the program a derivative work.
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Re: GPL 2(b) HUH?

[JEDIDIAH]

On 2008-09-16, Rjack <[EMAIL PROTECTED]> wrote:
> It is interesting to note that compiling the source code of standard
> program packages of independently authored c code (and assembler) like
> the Linux kernel does not create a derivative work. Some people think
> that compiling module1.c, module2.c, . . . into "-o prgm" translates
> the source code into a derivative work.
>
> e.g.: gcc -o prgm module1.c module2.c . . .
>
> There is absolutely *no* spark of originality added as gcc assembles the
> source code into an executable -- something thousands of people do

...it also includes it's own versions of fundemental libraries.

Something you would be aware of if you had half a clue to rant with in
this area. The other half a clue is the fact that GCC is specifically
exempt from the strong GPL.

[deletia]

Oracle and EA can figure this out. Why can't you?

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Re: GPL 2(b) HUH?

[Ciaran O'Riordan]

> No, it would not. By statute, in the U.S., a derivative work is a

That's not about software, and that's only one jurisdiction.

> Programs written to interoperate with other programs are not derivative
> works of those programs.

True, but we're not talking about that.  The example you're replying to was
a scheduler which is an intimate part of a kernel, definitely not a separate
program that interacts with the kernel.


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Re: GPL 2(b) HUH?

[Hyman Rosen]

Ciaran O'Riordan wrote:

But if you looked at Linux, decided the scheduler was crap, and then wrote a
completely new scheduler for Linux, then that would be a derivative work


No, it would not. By statute, in the U.S., a derivative work is a
transformation of another work which retains its original purpose -
turning a short story into a movie script, or translating into a
different language. See the Harry Potter case, where the judge said
that turning narratives into a reference text, even with massive
copying from the original sources, does not make the reference text
a derivative work of the novels, because the reference does not serve
the same purpose as the novels even though it is a transformation of
them.

Programs written to interoperate with other programs are not derivative
works of those programs. And a good thing, too.
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Re: GPL 2(b) HUH?

[Ciaran O'Riordan]

Ciaran O'Riordan <[EMAIL PROTECTED]> writes:
> For example, if you sang a song, recorded it, and put it into the Linux
> kernel source as your start-up sound, then that wouldn't automatically be
> GPL'd, AFAICT.  That would be a simple amalgamation, even if the final
> output might all be in the one file.
>
> But if you looked at Linux, decided the scheduler was crap, and then wrote a
> completely new scheduler for Linux, then that would be a derivative work,
> AFAICT.  Whether you link or compile it all together, or whether you output
> one file or multiple, wouldn't be a deciding factor, AFAIK.

These examples are at each end of a spectrum of "independent" works.  In
between are grey areas, and all decisions will depend on which judge you get
in which country.

The way to have legal certainty is to simply GPL your contribution too.

...but if someone wants to benefit from free software without contributing,
then the legal mess created by modern copyright law is there own problem.

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Re: GPL 2(b) HUH?

[Ciaran O'Riordan]

Rjack <[EMAIL PROTECTED]> writes:
> It is interesting to note that compiling the source code of standard
> program packages of independently authored c code (and assembler) like
> the Linux kernel does not create a derivative work.

Correct, or more precisely, does not *necessarily* create a derivative work.

Whether X is a derivative of Y is determined at time of writing, not at time
of linking or compiling.

> If I compile my extra, independently authored c code into the Linux
> source tree I create a new collective work not a new derivative work.

If by "independently authored" you mean that you didn't write it to work
with Linux, then your work might indeed not be a derivative work.

For example, if you sang a song, recorded it, and put it into the Linux
kernel source as your start-up sound, then that wouldn't automatically be
GPL'd, AFAICT.  That would be a simple amalgamation, even if the final
output might all be in the one file.

But if you looked at Linux, decided the scheduler was crap, and then wrote a
completely new scheduler for Linux, then that would be a derivative work,
AFAICT.  Whether you link or compile it all together, or whether you output
one file or multiple, wouldn't be a deciding factor, AFAIK.

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