Licensing question about the BSD
Steve
criticisms of the old "advertising clause" as it existed prior to 1999.
A chief problem that GNU had with it was that the requirement to
acknowledge original copyright owners in derived works leads to bloated
and unwieldy acknowledgment lists as code evolves and becomes included
in generations of derived works.
However, as I'm reading the BSD license text on www.opensource.org, I'm
not seeing how that issue was resolved simply by removing the
"advertising clause". The first two clauses of the current BSD license
still seem to require a form of acknowledgment:
"Redistributions of source code [or clause 2: "in binary form"] must
retain the above copyright notice, this list of conditions and the
following disclaimer..."
Does this not mean that an incrementally-growing list of contributors
must be acknowledged through retention of their copyright notices in
derived works? For that matter, doesn't this verbiage imply that works
deriving from BSD-licensed code must be licensed under the BSD as
well... since the "copyright notice, list of conditions, and disclaimer"
(basically the entire contents of the license) must be retained in
"redistributions of source and binary forms, WITH AND WITHOUT
MODIFICATION" (i.e. derived works)?
Since BSD-licensed code has shown up in proprietary-licensed Microsoft
products, and since I haven't seen any mile-long lists of
acknowledgements in BSD-licensed projects' README files lately, I think
it's safe to say that my interpretation of the BSD license text is
flawed. What am I missing, then?
Per Abrahamsen
> Does this not mean that an incrementally-growing list of contributors
> must be acknowledged through retention of their copyright notices in
> derived works?
As long as the copyright notice and contributor list only has to be
maintained in the source code or license file, it is not a practical
problem, even with 100's or 1000's of names. Text is cheap.
The problem with the old license was that the contributors should be
acknowledged in advertisements, where space is much more scarce.
> For that matter, doesn't this verbiage imply that works
> deriving from BSD-licensed code must be licensed under the BSD as
> well... since the "copyright notice, list of conditions, and disclaimer"
> (basically the entire contents of the license) must be retained in
> "redistributions of source and binary forms, WITH AND WITHOUT
> MODIFICATION" (i.e. derived works)?
The BSD license does not cover the modifications, it merely allows for
the modifications.
Steve
> the modifications.
Can you please elaborate further? This statement seems to directly
contradict your previous one, acknowledging that works deriving from
BSD-licensed code must include the ancestral owner(s)'s copyright
notice(s) and licensing conditions/disclaimer.
For purposes of what I'm asking about, placement of these
acknowledgments in source code vs. advertisements isn't really relevant.
The license states that "redistributions... with modification" (ie.
derived works) have to embed the BSD license terms SOMEWHERE in their
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)?
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". 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". Finally, I come along and
write application "C", which incorporates code from "B".
In this example, I would of course be required to license my "C"
application under the GPL. Would I ALSO need to embed in my source and
docs a copyright notice for the author of "A", with the BSD terms and
disclaimer? Even though the "B" application I derived from was GPL'ed,
do I also "inherit" that requirment placed on "B" by "A"?
I guess what has me confused is that I've seen tons of projects that
incorporate BSD-licensed code, yet do not include long lists of
copyright notices in their source and docs. Does this imply that many
people deriving from BSD-licensed works are simply breaking the license
agreement, or is there something else I'm missing here?
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.
regards,
alexander.
Steve
> 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!
> 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? 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.
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?
I suppose that my understanding of the BSD license, in layman's terms,
consisted of the following conditions:
1) Do whatever you want from this code, including modifying it and/or
using it your own projects. Just don't try to misrepresent yourself as
the author of my original project. Likewise, don't use the name of my
project or myself to imply that I endorse anything you use it for.
3) Don't sue me if anything goes wrong.
If the BSD license does NOT translate into these conditions, can
someone please tell me of any open-source licenses that do so? These
are the wishes that I had in mind with past projects I licensed under
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."
regards,
alexander.
Bruce Lewis
> Drivative works of BSD'd code (derivative literary works [modulo the AFC
> test] under copyright law) are subject to BSD.
That's really interesting. What legal jurisdiction are you in?
U.S. law is different. Here, derivative works have separate copyrights
independent of copyrights on the material they're derived from. 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. Material contributed by the author of the derivative work
would not be subject to the BSD license.
http://www.copyright.gov/title17/92chap1.html#103
103. Subject matter of copyright: Compilations and derivative works
(a) 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.
(b) 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 preexisting 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.
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.
regards,
alexander.
Alexander Terekhov
Bruce Lewis wrote:
[...]
> http://www.copyright.gov/title17/92chap1.html#103
http://groups.google.de/group/gnu.misc.discuss/msg/50a5eb95d9c8a423
regards,
alexander.
Isaac
> Alexander Terekhov <tere...@web.de> writes:
>
>> Drivative works of BSD'd code (derivative literary works [modulo the AFC
>> test] under copyright law) are subject to BSD.
>
> That's really interesting. What legal jurisdiction are you in?
> U.S. law is different. Here, derivative works have separate copyrights
> independent of copyrights on the material they're derived from. 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. Material contributed by the author of the derivative work
> would not be subject to the BSD license.
Derivative works have separate copyrights, but distributing an inseparable
derivative or collective work, such as a program in object form requires
complying with the copyright/license provisions of the original material.
The BSD license does have terms, just not onerous ones. The advertising
clause was a potentially onerous one.
Isaac
Per Abrahamsen
> The license states that "redistributions... with modification" (ie.
> derived works) have to embed the BSD license terms SOMEWHERE in their
> materials.
Yes.
> 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)?
Yes, the combined work is covered by all the licenses. The key is
that even if the BSD license allow you to do something, the other
licenses will have to allow it as well.
> 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". 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". Finally, I
> come along and write application "C", which incorporates code from
> "B".
>
> In this example, I would of course be required to license my "C"
> application under the GPL.
Yes.
> Would I ALSO need to embed in my source and docs a copyright notice
> for the author of "A", with the BSD terms and disclaimer?
There have never been any requirement to put the copyright notice for
the software in the documentation. You have to retain it in the
source.
> Even though the "B" application I derived from was GPL'ed,
> do I also "inherit" that requirment placed on "B" by "A"?
Yes.
> I guess what has me confused is that I've seen tons of projects that
> incorporate BSD-licensed code, yet do not include long lists of
> copyright notices in their source and docs. Does this imply that many
> people deriving from BSD-licensed works are simply breaking the license
> agreement, or is there something else I'm missing here?
Both. If people have removed the original BSD copyright notice, they
are breaking the license. If people have added code, but not added
their name to the copyright notice, the situation is unclear. If they
have not in other ways indicated the terms of distribution, they most
likely retain all rights to their code, and redistribution of the code
by a third party is a copyright violation.
Some would say that submitting a patch to a free software project is
an implicit permission to distribute the code under the same
conditions as the rest of the project. I very much doubt a judge
would agree if it came to court, they tend to take the side of the
copyright holder.
Bruce Lewis
> the modified source code
> must retain the BSD license: different license is not allowed.
[True statement]: [false statement]
A different license is allowed for the derivative. The copyright on the
original is still in force, and to comply with the license the
derivative must include the BSD license. But that license only covers
the original, not the derivative. Two copyrights, two licenses.
Your posts are obscuring the key difference between the BSD license and
the GPL. Is this on purpose?
Bruce Lewis
> On 03 Aug 2005 13:44:55 -0400, Bruce Lewis <brl...@yahoo.com> wrote:
> > Alexander Terekhov <tere...@web.de> writes:
> >
> >> Drivative works of BSD'd code (derivative literary works [modulo the AFC
> >> test] under copyright law) are subject to BSD.
> >
> > That's really interesting. [...]
>
> Derivative works have separate copyrights, but distributing an inseparable
> derivative or collective work, such as a program in object form requires
> complying with the copyright/license provisions of the original material.
I think you and I are reading "subject to BSD" differently.
If you read Alexander's statement as "Authors of derivative works of
BSD'd code must comply with the BSD license" then his statement is true.
In the context of the question, he seemed to be saying "Derivative works
are automatically licensed under the terms of the BSD license." That's
not true. Only the original code is, and the author of the derivative
work is under no obligation to identify what is original code and what
isn't. You need to find the original code to know that. So basically
the presence of the BSD license in a derivative work doesn't give you
anything if there's an additional non-libre license. Excepting of course
a hint that there's a libre alternative out there.
However, if you see the GPL in a derivative work, you know you have the
right to copy/adapt the code. For the author of the derivative to
lawfully incorporate GPLed code, he must license the derivative under
the same terms. If he licenses it under the same terms, you have the
right to copy/adapt under the same terms. If he does not license it
under the same terms, then he has no copyright protection; the only
copyright in force is for the original GPLed code. Copy/adapt all you
want.
Alfred M. Szmidt
and the GPL. Is this on purpose?
Sad to say, yes it is. Alexander Terekhov likes to spread lies (sadly,
this is the only thing it can be called) about the GNU GPL, the BSD
license, copyright law, and other things on this mailing list.
John Hasler
> If he does not license it under the same terms, then he has no copyright
> protection; the only copyright in force is for the original GPLed code.
This is not true. He is infringing the copyright on the original code by
distributing the derivative under terms other than those of the GPL but he
still owns and can enforce the copyright in the portion of the derivative
that is exclusively his work.
--
John Hasler
jo...@dhh.gt.org
Dancing Horse Hill
Elmwood, WI USA
Bruce Lewis
> Steve wrote:
> >
> > 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 thinking you're taking a far too technical view on what constitutes a
derivative work, and I'll use an example to explain why.
Suppose I created a painting designed to fit under the Mona Lisa and
fill in the rest of her body. I mount it on a board, carefully aligned
under an exact copy of the Mona Lisa. Technically, I haven't altered a
single brush stroke of the original painting. Does this mean my new
work is a compilation? I don't think so. I would expect a judge or
jury to view my work as a recasting or adaptation of the original work,
thus fitting the legal definition of a derivative work.
We all know that 500-year-old paintings are not subject to copyright
unless the painter was employed by Walt Disney(1), but suppose for the
sake of argument that I had incorporated the Mona Lisa unlawfully. If
my work is a derivative, I have no copyright protection on whatever part
incorporates(2) the Mona Lisa.
It's the same with a GPLed program. If you incorporate it into a new
application, it may not help that you haven't altered a single line of
GPL'ed code. Your application's dependence on the GPLed code is very
likely to make it a derivative work.
Footnotes:
(1) this is a joke that people familiar with U.S. copyright issues will
get.
(2) U.S. copyright law says "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." However,
I think Alexander is right that "used" is an inappropriate term in
the context of copyright. I use "incorporated" here even though its
definition needs to stretch a little to cover derivative works.
"Use" can easily be taken to include using a program, but that isn't
covered by copyright law. When you see "used" in U.S. copyright
law, think "put to a use that is the exclusive right of the
copyright holder."
Bruce Lewis
> Bruce Lewis writes:
> > If he does not license it under the same terms, then he has no copyright
> > protection; the only copyright in force is for the original GPLed code.
>
> This is not true. He is infringing the copyright on the original code by
> distributing the derivative under terms other than those of the GPL but he
> still owns and can enforce the copyright in the portion of the derivative
> that is exclusively his work.
We might or might not be in agreement, depending on what you mean by
"exclusively his work." If you are talking about portions that form a
creative work independent of the original work, I agree, and I should
have been explicit about that in my previous post.
However, I think that "any part of the work in which such material has
been used unlawfully" may cover portions that do not specifically
include the original portions. A painting of Mona Lisa's arms and hands
holding my company's product may be "exclusively my work" in that the
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.
Alexander Terekhov
[... 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.
regards,
alexander.
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.
regards,
alexander.
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".
regards,
alexander.
Isaac
> Isaac <is...@latveria.castledoom.org> writes:
>
>> On 03 Aug 2005 13:44:55 -0400, Bruce Lewis <brl...@yahoo.com> wrote:
>> > Alexander Terekhov <tere...@web.de> writes:
>> >
>> >> Drivative works of BSD'd code (derivative literary works [modulo the AFC
>> >> test] under copyright law) are subject to BSD.
>> >
>> > That's really interesting. [...]
>>
>> Derivative works have separate copyrights, but distributing an inseparable
>> derivative or collective work, such as a program in object form requires
>> complying with the copyright/license provisions of the original material.
>
> I think you and I are reading "subject to BSD" differently.
>
> If you read Alexander's statement as "Authors of derivative works of
> BSD'd code must comply with the BSD license" then his statement is true.
I don't think so. The point is that if your work and the original
are inseparable, you cannot distribute your work without distributing the
BSD work.
If the works can be separated then you can distribute your own code as
you wish.
Isaac
Isaac
>
> 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?
>
> regards,
> alexander.
Alexander Terekhov
Yeah, I should have said that copyright doesn't establish exclusive
right to
"designed to fit". Ok now?
regards,
alexander.
Bruce Lewis
The boy scouts state that you should bring a compass when you go into
the woods: bringing bug spray is not allowed.
The above statement doesn't make any sense, but maybe if I repeat it
verbatim every time someone refutes it, they'll eventually give up and
be quiet.
Bruce Lewis
> Yeah, I should have said that copyright doesn't establish exclusive
> right to "designed to fit". Ok now?
Just from your words: "To fit" is one definition of "adapt". Adaptation
is one form of derivative work. Derivative work is an exclusive right
of copyright.
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."
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.
regards,
alexander.
Alexander Terekhov
Bruce Lewis wrote:
>
> Alexander Terekhov <tere...@web.de> 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.
regards,
alexander.
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,
alexander.
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")
regards,
alexander.
David Kastrup
Too bad that the courts and the legal departments of companies like
NeXT and MCC don't agree with Mr. Edwards' unpublished draft. GPL
"enforcement" actions tend to work rather reliably in the real world,
reliably enough that it would not seem prudent to test the legal
fantasies of a Mr. Terekhov at the receiving end of a law suit.
--
David Kastrup, Kriemhildstr. 15, 44793 Bochum
Bruce Lewis
> 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 and license. It must retain the BSD copyright statement and
license, but that still only applies to the original work.
Bruce Lewis
You have been arguing that if the original software is unmodified, any
software built upon it is a compilation, not a derivative.
I have been arguing that there may be cases where this is not true.
Now you are citing someone who says "Such innovations rarely will
constitute infringing derivative works under the Copyright Act."
"Rarely" implies it is possible. Are you conceding? Or are you arguing
against a straw man who says that such software is always a derivative?
Alexander Terekhov
Bruce Lewis wrote:
>
> Alexander Terekhov <tere...@web.de> 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.
regards,
alexander.
Bruce Lewis
Sorry I was so stupid as to read the actual law instead of simply
believing what you say.
You can have software that "builds on" other software but does not
recast, transform or adapt it. You can have software that "builds on"
other software and does recast, transform or adapt it. In the latter
case it's a derivative work.
Embedded spell checkers and Game Genie notwithstanding, there is still
plenty of water that courts haven't tested. I would look at specifics
and not just assume that because the original source code is unmodified,
that there's no derivative work.
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.")
regards,
alexander.
Bruce Lewis
> 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".
Alexander Terekhov
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.
regards,
alexander.
Bruce Lewis
> 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,
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.
I think I'm getting past the "expose fallacies for the benefit of
newcomers" stage and getting into a "feeding the troll" stage. You
won't read much more of me in this thread.
Bruce Lewis
> Bruce Lewis wrote:
> [...]
> > "Rarely" implies it is possible.
>
> That mild and polite wording doesn't subvert the clear message.
It subverts yours.
Alexander Terekhov
Bruce Lewis wrote:
>
> Alexander Terekhov <tere...@web.de> 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?
regards,
alexander.
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 <quote> 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. :-)
</quote>
regards,
alexander.
Isaac
I think suggesting that an unmodified work has been recast or transformed in
form is a pretty big stretch. Adapted comes the closest, but in my opinion
adapting requires making at least some change to fit. Yet you've expressly
stated that the original software has not been modified.
Maybe building on other software without modifying it does result in a
derivative work, but I don't think parsing the literal meaning of the
statute is going to support the argument. I'd want to see some case law.
Isaac
Isaac
> Alexander Terekhov <tere...@web.de> writes:
>
>> 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.
>
> Too bad that the courts and the legal departments of companies like
Which court decisions are in disagreement with Mr. Edward's position?
Isaac
David Kastrup
<URL:http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
<URL:http://gpl-violations.org/news/20050414-fortinet-injunction.html>
You'll find that all other violations reported on the first site were
resolved by the perpetrators agreeing to follow the rules of the GPL,
and that includes Fujitsu-Siemens, not exactly a company with a small
legal department.
Anyway, see <URL:http://gpl-violations.org/> for more examples also of
ongoing cases.
There is actually a dearth of reported cases since almost all
perpetrators prefer to settle out of court.
Note that in particular the netfilter cases concern code in modules
that is linked into complete products: nevertheless they were able to
obtain injunctions and settlements for the complete products involved.
Isaac
These cases really do not appear to be on point and seem to deal with
non controversial aspects of the GPL and copyright law.
I'm not really questioning your position at this point, but I am
questioning your statement that the issue of component usage has been
settled by court decisions. I think your overstated things a bit.
Isaac
Alexander Terekhov
Isaac wrote:
[...]
> ><URL:http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
> ><URL: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
<quote>
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.
</quote>
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
<quote>
Sitecom appealed the injunction, but lost,
</quote>
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.
<quote>
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.)
</quote>
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
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> http://www.macnewsworld.com/story/43996.html
I like this:
<quote>
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.
</quote>
regards,
alexander.
David Kastrup
> Alexander Terekhov wrote:
> [...]
>> http://www.macnewsworld.com/story/43996.html
>
> I like this:
>
> <quote>
>
> 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.
And since companies are awfully afraid of being embarrassed by some
lawsuit-mad crazy person, they fold immediately. That's what they
have their lawyers for.
The GPL has indeed seen little exposure in the courts, and that's
simply because a defendant does not gain anything from contesting its
validity since it is not a contract. In that case, he is acting
without license, and that does not grant him the right to
redistribute, either.
So what really is interesting here is not the extent of the GPL, but
rather the extent of copyright law.
Alexander Terekhov
Isaac wrote:
[...]
> ><URL:http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
> ><URL: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.
David Kastrup
> Isaac wrote:
> [...]
>> ><URL:http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
>> ><URL: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.
§158 covers "Rechtsgeschäfte" in general, of which contracts
("Verträge") are only one special case. A licence by GPL is an
"einseitiges Rechtsgeschäft" (something like "unilateral legal
transaction"), not a contract. As such it is covered by the laws
concerning "Willenserklärungen", not "Verträge".
If you bothered actually reading the laws in context, this should not
have escaped you.
Alexander Terekhov
Alexander Terekhov wrote:
>
> Isaac wrote:
> [...]
> > ><URL:http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
> > ><URL: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.
David Kastrup
> Alexander Terekhov wrote:
>>
>> Isaac wrote:
>> [...]
>> > ><URL:http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
>> > ><URL: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
>
> Es spricht damit einiges für die Annahme eines (zumindest
> konkludenten) Vertragsschlusses bei der Einräumung eines
> Nutzungsrechts - auch unter der GPL.
So your reference is an isolated informal opinion in a web log with
the conclusion "So there are some arguments for assuming an (at least
inferable) closing of a contract in the grant of a permission of use
-- even under the GPL."
Wow. Talk about extrapolation. Anyway, your "plonking" does not seem
to work very reliably. Maybe you should sue the author of your Usenet
reader "Mozilla" for not upholding his part of your mutual contract.
Alexander Terekhov
Alexander Terekhov wrote:
>
> Alexander Terekhov wrote:
> >
> > Isaac wrote:
> > [...]
> > > ><URL:http://www.netfilter.org/news/2004-04-15-sitecom-gpl.html>
> > > ><URL: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
I hear that (plonked) GNUtian dak still seems to be confusing the GPL
with "einseitiges Rechtsgeschäft".
Here's the Jaeger/Metzger theory that was used by the District Court
of Munich:
http://www.beck-shop.de/iis/produktview.html/op/4/tocID/360/prodID/252/catID/1/SessionKey/3B50E68C93D1767060AFC29E5A0DE00E/
(Jaeger / Metzger, Open Source Software, Rechtliche Rahmenbedingungen der Freien Software)
http://www.beck-shop.de/downloads/3406484026.pdf
---
A. Vertragskonstellation 1: Download von Freier Software direkt vom
Urheber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
I. Der Vertragstyp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
1. Software als Vertragsgegenstand . . . . . . . . . . . . . . . . . . . . . 138
2. Nutzungsrechte als Vertragsgegenstand . . . . . . . . . . . . . . . . 138
3. Erwerb von Freier Software als Schenkung . . . . . . . . . . . . . 139
a) Zuwendung. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
b) Entreicherung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
c) Bereicherung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
d) Unentgeltlichkeit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
4. Erstellung von Freier Software als Gesellschaftsbeitrag? . . . 144
II. Vertragsverhältnisse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
III. Gewährleistung und Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . 145
1. Gewährleistung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
a) Anwendbarkeit der AGB-Vorschriften . . . . . . . . . . . . . . 146
b) Open Source Lizenzen als AGB. . . . . . . . . . . . . . . . . . . . 147
c) Einbeziehung in den Vertrag . . . . . . . . . . . . . . . . . . . . . . 147
d) Verstoß gegen die AGB-Vorschriften . . . . . . . . . . . . . . . . 150
e) Rechtsfolge des unwirksamen Gewährleistungsausschlusses
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
2. Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
a) Produkthaftung. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
b) Vertragliche Haftung. . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
B. Vertragskonstellation 2: Erwerb der Software auf einem Datenträger
direkt vom Urheber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
I. Vertragstyp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
II. Gewährleistung und Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . 158
1. Gewährleistung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
2. Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
C. Vertragskonstellation 3: Download der Software vom Server eines
Dritten. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
I. Die Vertragsverhältnisse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
1. Urheber – Dritter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
2. Dritter – Nutzer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
3. Urheber – Nutzer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
II. Gewährleistung und Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . 162
1. Gewährleistung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
2. Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
D. Vertragskonstellation 4: Erwerb der Software auf einem Datenträger
von einem Dritten . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
I. Die Vertragsverhältnisse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
II. Gewährleistung und Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . 166
1. Gewährleistung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
2. Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Inhaltsverzeichnis XI
E. Vertragskonstellation 5: Individuelle Herstellung von Open
Source Software. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
I. Die Vertragsverhältnisse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
1. Softwarehersteller – Endkunde . . . . . . . . . . . . . . . . . . . . . . 169
2. Softwarehersteller – Besteller . . . . . . . . . . . . . . . . . . . . . . . . 169
3. Besteller – Endkunde . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
II. Gewährleistung und Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . 170
1. Gewährleistung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
2. Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
F. Vertragskonstellation 6: Koppelung von Open Source Software
mit Hardware, insbesondere ,,Embedded Systeme“. . . . . . . . . . . . . 172
I. Der Vertragstyp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
II. Gewährleistung und Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . 173
1. Gewährleistung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
2. Haftung . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
---
See also
http://rsw.beck.de/bib/default.asp?vpath=%2Fbibdata%2Fzeits%2FGRURInt%2F1999%2Fcont%2FGRURInt%2E1999%2E839%2E1%2Ehtm&ha=Y-300-Z-GRURINT-B-1999-S-839-N-1
(Open Source Software und deutsches Urheberrecht, Axel Metzger und Till Jaeger)
<quote>
Der Lizenzvertrag kommt mit der Veränderung oder Verbreitung des Programms
zustande 71 und wird gem. Ziff. 4 GPL erst dann wirkungslos, wenn der
Lizenznehmer gegen die Bedingungen der GPL verstößt. Damit soll die
Wirksamkeit des zunächst gültig gewordenen Vertrages zwischen Lizenznehmer
und Lizenzgeber von dem ungewissen Ereignis abhängig gemacht werden, ob die
Verpflichtungen aus der GPL eingehalten werden. Demnach ist die Bedingung
auflösend i. S. d. § 158 Abs. 2 BGB.
[...]
1. Anwendungsbereich des AGBG
Die GPL, die unzweifelhaft vorformulierte Vertragsbedingungen i. S. d. § 1
AGBG enthält, weist in einem Anhang darauf hin, wie die Vertragsbedingungen
auf neue Programme anwendbar gemacht werden sollen 105. Wer diesem Vorschlag
folgt und am Anfang jeder Quelldatei auf einen Gewährleistungsausschluß
sowie auf die beigefügte Kopie der GPL verweist, genügt den Anforderungen
eines ausdrücklichen Hinweises gem. § 2 Abs. 1 Nr. 1 AGBG. Mit dem Laden
des Programms werden die AGB dann konkludent in den Vertrag mit einbezogen 106.
Wenn aber nur die Anmerkung am Anfang der Quelldatei vorhanden ist und keine
Kopie der GPL beigefügt wurde, so reicht der Hinweis auf die Adresse der
Free Software Foundation für die Einbeziehung in den Vertrag nicht aus. Sich
die GPL aus den USA per "gelber Post" schicken zu lassen, stellt sicherlich
keine zumutbare Möglichkeit der Kenntnisnahme i. S. d. § 2 Abs. 1 Nr. 2 AGBG
dar.
Die Anwendbarkeit des AGBG scheitert im übrigen weder an dem persönlichen und
sachlichen Anwendungsbereich gem. §§ 23 , 24 AGBG noch in dem Fall, daß das
Vertragsstatut US-amerikanisches Recht vorsieht 107.
</quote>
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> (http://www.ifross.de) which advocates that contractual "condition
Oh my, this is fun ("the GPL 2b is not for kids", so to speak):
http://www.ifross.de/ifross_html/art7.html
("Frei ab 18 Jahre")
Well, I agree. :-)
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> 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.
Well, looks like that in the meantime, the fellows have realized
that exemption from first sale won't fly. They have yet to discover
that copies created in the course of downloading from the
authorized distributor (not the same as mere displays [on the net]
of "all rights reserved" source code, and etc. "displays" not
conveying ownership to the downloaded copies) also fall under the
first sale (and that at least in US where it is statutory under 17
USC 117, subsequent distribution of such a copy can be accompanied
by additional copy in object code form which is necessary to run
software... as part of "mere aggregation" with some other "library"
stuff or whatnot).
http://www.dipp.nrw.de/d-fsl/lizenzen/en/D-FSL-1_0_en.html
<quote>
German Free Software License
(c) Ministry of Science and Research, State of North-Rhine
Westphalia 2004
Developed and created by Axel Metzger and Till Jaeger, Institut
für Rechtsfragen der Freien und Open Source Software (Institute
for Legal Issues On Free and Open Source Software),
http://www.ifross.de.
[...]
Section 5 Conclusion of the Contract
(1) With this License you and any other person are offered the
conclusion of a contract for the use of this Program under the
conditions of this License.
(2) You may use the Program in accordance with the applicable
statutory provisions for the intended purpose without having to
accept this License. In the European Union and in most other
legal systems, this right in particular includes the following
authorizations:
1. Running of the Program as well as reproducing on hard-drive
and RAM required for this;
2. Making of a back-up copy;
3. Correcting errors;
4. Distributing a lawfully acquired physical copy of the Program.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
(3) You declare your acceptance of this License by distributing
the Program, making it publicly available, modifying or
reproducing it in a way that goes beyond the intended use in the
sense of Subsection 2. From this time on, this License shall be
deemed as a legally binding agreement between the Entitled
Persons and you, without the need for the Entitled Persons to
obtain a declaration of acceptance.
</quote>
BTW, see also
http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:aas:9102
regards,
alexander.
Rui Miguel Seabra
> Alexander Terekhov wrote:
> [...]
> > 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.
>
> Well, looks like that in the meantime, the fellows have realized
> that exemption from first sale won't fly.
HELLO? It's only you who speaks of first sale.
The FSF is not talking about giving (or selling or whatever) your copy
(read first sale), but copy distribution.
You can't give a copy unless you have the right to do it.
The GNU GPL sets the conditions for you to have that right. Nothing else
grants it to you.
Rui
--
+ No matter how much you do, you never do enough -- unknown
+ Whatever you do will be insignificant,
| but it is very important that you do it -- Gandhi
+ So let's do it...?
Please AVOID sending me WORD, EXCEL or POWERPOINT attachments.
See http://www.gnu.org/philosophy/no-word-attachments.html
Alexander Terekhov
Rui Miguel Seabra wrote:
>
> On Mon, 2005-08-08 at 21:25 +0200, Alexander Terekhov wrote:
> > Alexander Terekhov wrote:
> > [...]
> > > 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.
> >
> > Well, looks like that in the meantime, the fellows have realized
> > that exemption from first sale won't fly.
>
> HELLO? It's only you who speaks of first sale.
Really? Final judgment regarding injunction against Sitecom by the
District Court of Munich I and appellate Judge Hoeren's feedback
aside for a moment, go ask your comrade dak translate pages 48, 49,
50, 51, and 52 of
http://www.vsi.de/inhalte/aktuell/studie_final_safe.pdf.
Please try to NOT miss the stuff behind footnote 284 (attributed
to Welte's attorney Jaeger together with his colleague Metzger).
>
> The FSF is not talking about giving (or selling or whatever) your copy
> (read first sale), but copy distribution.
Under FSF's "GPL-is-not-a-contract" theory, all copies of publicly
available GPL'd works fall under "copy distribution" pursuant to the
first sale because they are "lawfully made" and there's no contract
that would restrict (impose enforceable conditions) on their
distribution.
The GFSL (German Free Software License "created by Axel Metzger and
Till Jaeger") concedes that the first sale "preempts" it (GFSL being
a non-negotiable licensing contract accepted by a licensee when
exercising the copyright license granted in the GFSL... just like
the properly construed GPL): no reciprocal (contractual) obligations
on part of redisrtibutors under first sale (without some other
explicit manifestation of assent to the contrary, that is).
And copies (in both source and object code form... accompanied by
additional copies under 17 USC 117) of computer program works made
in the course of downloading from the authorized distributors do
fall under the first sale. Go ask the Libraries Association (and
also Time Warner, Inc.):
http://cyber.law.harvard.edu/archive/dvd-discuss/msg07922.html
regards,
alexander.
Rui Miguel Seabra
> > The FSF is not talking about giving (or selling or whatever) your copy
> > (read first sale), but copy distribution.
>
> Under FSF's "GPL-is-not-a-contract" theory
How is it not a theory? You don't have to click any "I Agree" on GNU GPL
software. If you happen to find any program that forces you to click "I
Agree" to install and use then file a bug with the developers.
It's only
> , all copies of publicly
> available GPL'd works fall under "copy distribution"
that have conditions.
> pursuant to the
> first sale because
First sale immediately implies that you loose your copy on the act of
giving it to someone else, either commercially or not. Giving "a copy of
what you have" (copy distribution) is different than giving "what you
have" (first sale).
> they are "lawfully made" and there's no contract
> that would restrict (impose enforceable conditions) on their
> distribution.
Of course. There's no contract from the beginning. The GNU GPL is an
unilateral grant of rights, some of them with conditions. Nothing else
will give you certain rights granted by it, because the law's default is
not to give them.
Please stop deliberately lying.
Alexander Terekhov
Rui Miguel Seabra wrote:
[...]
> There's no contract from the beginning.
Drop a note to Edwards of debian-legal and ask for a copy of his "Will
the Real GNU GPL Please Stand Up?"
<quote>
This document represents the author's best effort to identify the
principles of common law, Federal statutes, areas of state law (with
reference to the California Civil Code), and appellate precedents
that would apply to the construction of the GNU GPL in a "GPL
violation" court proceeding.
</quote>
Uhmm. Oh wait, I suspect you're in Europe. Go ask Welte's lawyer(s)
http://www.ifross.de and/or http://www.jbb.de) why the GPL is a
contract in the EU civil law countries too.
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
http://oss.fh-coburg.de/events/OSSIE04/schulz_contractional_relationships.pdf
(Contractual Relationships in Open Source Structures, Carsten Schulz, JBB
Rechtsanwälte, carsten...@ifross.de)
regards,
alexander.
Rui Miguel Seabra
> Rui Miguel Seabra wrote:
> [...]
> > There's no contract from the beginning.
>
> Drop a note to Edwards of debian-legal and ask for a copy of his "Will
> the Real GNU GPL Please Stand Up?"
Stop distorting intentionally everything people write.
> Uhmm. Oh wait, I suspect you're in Europe. Go ask Welte's lawyer(s)
> http://www.ifross.de and/or http://www.jbb.de) why the GPL is a
> contract in the EU civil law countries too.
Many lawyers treat licenses as contracts. And in many cases perhaps they
are right: the typical proprietary license _further_inhibits_ the rights
a software user can perform, and as such it has to be contractual.
However, the GNU GPL _increases_ rights, without interfering with the
ones that already do exist.
If you get a copy, you can run the software for any purpose.
But to distribute copies:
a) you have to have the right
b) copyright forbids that right to others than the copyright holder
c) the GNU GPL is an unilateral grant of copying rights under
certain conditions
d) AND: nothing else grants you those rights.
Oh, and please stop creating intentional confusion with that "first
sale" thing. If you make a copy, and keep your own copy, that's not
"first sale".
Alexander Terekhov
Rui Miguel Seabra wrote:
[...]
> > the Real GNU GPL Please Stand Up?"
>
> Stop distorting intentionally everything people write.
Well, did you already read that Edwards article? What exactly did I
distort? Start on quoting original.
[... "the GPL is not a contract" ...]
http://google.com/groups?selm=425BE5D1...@web.de
regards,
alexander.
Rui Miguel Seabra
You continue to make gratuitous insults and absurd information.
Nothing in there contradicts me. In fact, it contradicts you:
<<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.>>
^^^^^^^^^
So you can do whatever with _YOUR_COPY_ but you still can't redistribute
copies of it.
Alexander Terekhov
Rui Miguel Seabra wrote:
[...]
> 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.>>
> ^^^^^^^^^
>
> So you can do whatever with _YOUR_COPY_ but you still can't redistribute
> copies of it.
Downloads aside for a moment, the GPL permits reproduction, and, under
the idiotic "not-a-contract" theory, it just can't compel me to
relinquish the distribution right that I enjoy under the copyright
law (17 USC 109) being the owner of all those NEW "particular copies"
that I've lawfully made: I can distribute them as I see fit (apart
from rental) without the authority of the copyright owner. There's no
copyright infringement and there's no contract violation ("no contract"
says FSF). That's it.
regards,
alexander.
David Kastrup
> Rui Miguel Seabra wrote:
> [...]
>> <<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.>>
>> ^^^^^^^^^
>>
>> So you can do whatever with _YOUR_COPY_ but you still can't
>> redistribute copies of it.
>
> Downloads aside for a moment, the GPL permits reproduction,
Under conditions.
> and, under the idiotic "not-a-contract" theory, it just can't compel
> me to relinquish the distribution right that I enjoy under the
> copyright law (17 USC 109) being the owner of all those NEW
> "particular copies" that I've lawfully made:
Uh, you had no "lawful" right to make those particular copies: you had
only _conditional_ rights granted by the GPL.
> I can distribute them as I see fit (apart from rental) without the
> authority of the copyright owner.
But you could not create them in the first place without the authority
of the copyright owner.
--
Rui Miguel Seabra
> that I've lawfully made: I can distribute them as I see fit (apart
> from rental) without the authority of the copyright owner. There's no
> copyright infringement and there's no contract violation ("no contract"
> says FSF). That's it.
If you fetch 20 copies of some GPl'ed software, you can give away
_those_ 20 copies in the manner you wish.
But for each and every one of those you do so, you have to decrement the
counter. Give one, you keep 19. Until you get to 0.
But if you have one copy, and you distribute copies of it, you're making
a copyright violation.
In the earlier case, you may still be sued (and reading the history of
your posts here would give a quite interesting character report) for
trying to work around copyright law, so maybe still liable.
But that's hypothetical. All you say is simply laughable, if it didn't
smell of bad intention.
David Kastrup
> On Tue, 2005-08-09 at 15:04 +0200, Alexander Terekhov wrote:
>> that I've lawfully made: I can distribute them as I see fit (apart
>> from rental) without the authority of the copyright owner. There's
>> no copyright infringement and there's no contract violation ("no
>> contract" says FSF). That's it.
>
> If you fetch 20 copies of some GPl'ed software, you can give away
> _those_ 20 copies in the manner you wish.
Where "fetch" means "lawfully acquire". Something like buying a copy.
Or having gained explicit permission to make such a copy.
Alexander Terekhov
I hear that GNUtian dak seems to confuse the copyright law (which
establishes property rights subject to limitations under 17 USC 109,
117, etc.) with the contract law that is used to enforce licensee's
promises by licensors of copyright IP.
Well, regarding the GPL, GNUtian Moglen says that there aren't any
promises at all to be enforced.
http://google.com/groups?selm=410A3F60...@web.de
And I *really like* it.
regards,
alexander.
P.S. <quote source=http://www.nswscl.org.au/journal/49/Giles.html>
3 The licensee's promises
A licensee has the following possible obligations under the GPL:
3.1 Limits on distribution
to put appropriate notices and terms on distributed copies of the
program (GPL clause 1);
to place prominent notices on modified files stating the existence
and date of any modifications (GPL clause 2(a));
to license derivative works as a whole with no charge to any
licensees (GPL clause 2(b));
to display a notice of terms on derivative interactive programs
when distributed (GPL clause 2c);
to include the source code in any distributed copies (GPL clause 3);
not to distribute except as provided (GPL clause 4);
3.2 Legal rights abandoned
to give up rights to sue for implied warranties (GPL clause 11);
and
to give up rights to sue for tortious claims (GPL clause 12).
</quote>
Rui Miguel Seabra
> Well, regarding the GPL, GNUtian Moglen says that there aren't any
> promises at all to be enforced.
>
> http://google.com/groups?selm=410A3F60...@web.de
And here you both:
misquote
quote thyself
> And I *really like* it.
Like any narcisist nihilist.
There aren't any promises that the user has to do, because he isn't
allowed to make unauthorized copies by law.
So it's like promising not to offend a law. You don't have to promise
not to offend it to be tried in court for offending it. You already have
the obligation to respect the law.
Alexander Terekhov
Rui Miguel Seabra wrote:
>
> On Tue, 2005-08-09 at 15:41 +0200, Alexander Terekhov wrote:
> > Well, regarding the GPL, GNUtian Moglen says that there aren't any
> > promises at all to be enforced.
> >
> > http://google.com/groups?selm=410A3F60...@web.de
>
> And here you both:
> misquote
How so?
http://gl.scofacts.org/gl-20031214210634851.html
<quote>
Because the GPL does not require any promises in return from licensees,
it does not need contract enforcement in order to work. A GPL licensor
doesn't say in the event of trouble "But, judge, the licensee promised
me he wouldn't do what he's doing now." The licensor plaintiff says
'Judge, the defendant is redistributing my copyrighted work without
permission.'
</quote>
If you mean the omission of the rest of Moglens gospel... well,
"The defendant can then either agree that he has no permission,"
Objection. I have permission (unilateral grant) to reproduce.
"in which case he loses, or assert that his permission is the GPL,"
Copies are lawfully made pursuant to the GPL's unilateral grant
to reproduce.
"in which case he must show that he is obeying its terms."
No. You must show that copies are not lawfully made.
"A defendant cannot simultaneously assert that the GPL is valid
permission for his distribution"
I accept plaintiff's position that the GPL conveys valid
*unilateral* grant to reproduce. Plaintiff is estopped to change
his position.
"and also assert that it is not a valid copyright license,"
Ah that...
"which is why defendants do not 'challenge' the GPL."
Oh dear, just say a single word in the direction of extracting
the rights to my (non-derivative) works and I'll challenge your
claims under doctrine of copyright misuse. And my successful
defense will put all your GPL'd works into the quasi public
domain (by means of court imposed copyright impotence regarding
your GPL'd works). Wanna play?
> quote thyself
What do you mean?
regards,
alexander.
Rui Miguel Seabra
> If you mean the omission of the rest of Moglens gospel... well,
>
> "The defendant can then either agree that he has no permission,"
>
> Objection. I have permission (unilateral grant) to reproduce.
> "in which case he loses, or assert that his permission is the GPL,"
>
> Copies are lawfully made pursuant to the GPL's unilateral grant
> to reproduce.
... under certain conditions.
> "in which case he must show that he is obeying its terms."
>
> No. You must show that copies are not lawfully made.
If they don't follow the copy conditions, they are unauthorized.
> "A defendant cannot simultaneously assert that the GPL is valid
> permission for his distribution"
>
> I accept plaintiff's position that the GPL conveys valid
> *unilateral* grant to reproduce.
... under certain conditions.
You're a robot troll, answering again and again as if reacting to
certain string tokens with the same logic-void arguments.
Regards.
Alexander Terekhov
Rui Miguel Seabra wrote:
[...]
> > to reproduce.
> ... under certain conditions.
>
> > "in which case he must show that he is obeying its terms."
> >
> > No. You must show that copies are not lawfully made.
>
> If they don't follow the copy conditions, they are unauthorized.
And what copy conditions are not followed in the copies that I've
made?
Promises regarding distribution are totally baside the point. We
are talking about *unilateral* grant, not a contract:
http://gl.scofacts.org/gl-20031214210634851.html
<quote author=Moglen>
The GPL, however, is a true copyright license: a unilateral
permission, in which no obligations are reciprocally required by
the licensor.
</quote>
Distribution is done under 17 USC 109, not GPL.
regards,
alexander.
David Kastrup
The GPL does not grant you permission to copy for the purpose of
distribution under 17 USC 109. It grants you permission to copy for
the purpose of distribution under the GPL.
Your thought model would require very special circumstances. For
example, that the copyright owner places the software on a web site
with clearly propotional intent (so that there is a return of value)
and that this web site's conditions grant _unconditional_ rights to
download and redistribute the software. In that case, repeated
creation of copies by downloads and redistribution of those copies
under 17 USC 109 instead of the GPL might be conceivable.
Now you just need to find a copyright owner that gives explicit
permission to download stuff _without_ heeding the GPL.
Rui Miguel Seabra
> Promises regarding distribution are totally baside the point. We
> are talking about *unilateral* grant, not a contract:
You're a joke. Now you try to drag everyone who reads you into a
circular argument.
I've stated it well before you: the GNU GPL is an unilateral grant of
certain rights.
One of them is, UNDER CERTAIN CONDITIONS, to DISTRIBUTE COPIES, MODIFIED
OR NOT.
ANOTHER is RUNNING FOR ANY PURPOSE. And this one HAS NO CONDITIONS.
But you're nothing but a broken robot.
Rui
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> Promises regarding distribution are totally baside the point. We
> are talking about *unilateral* grant, not a contract:
>
> http://gl.scofacts.org/gl-20031214210634851.html
>
> <quote author=Moglen>
>
> The GPL, however, is a true copyright license: a unilateral
> permission, in which no obligations are reciprocally required by
> the licensor.
>
> </quote>
>
> Distribution is done under 17 USC 109, not GPL.
I hear that (plonked) GNUtian dak still can't grasp the difference
between *unilateral* stuff and contractual agreements in exchange
of promises. The promise to relinquish the distribution right that
I enjoy under the copyright law (17 USC 109), and distribute only
as mandated by the licensor, is a (imaginary or not) consideration
(AFAICS missed by Ben Giles), but it's totally beside the point
under Moglens theory "in which no obligations are reciprocally
required by the licensor". Note also that idiotic Section 5 (which
blatantly misstates the copyright law) is somewhat at odds with
dak's ad-hoc attempt to fix moronic Moglens theory.
regards,
alexander.
Alexander Terekhov
Rui Miguel Seabra wrote:
[...]
> certain rights.
>
> One of them is, UNDER CERTAIN CONDITIONS, to DISTRIBUTE COPIES,
17 USC 109, stupid.
> MODIFIED OR NOT.
Same thing (given that according to Moglen, the grant regarding
derivative works is also unilateral and doesn't conclude a
contract).
>
> ANOTHER is RUNNING FOR ANY PURPOSE. And this one HAS NO CONDITIONS.
17 USC 117 (see also Council Directive of 14 May 1991 on the
legal protection of computer programs, 91/250/EEC, Art. 5), my
friend.
>
> But you're nothing but a broken robot.
Your are incurably clueless, I'm afraid.
regards,
alexander.
David Kastrup
> I hear that (plonked) GNUtian dak
Your lies about your plonking are as transparent as your lies about
John Hasler
> ANOTHER is RUNNING FOR ANY PURPOSE. And this one HAS NO CONDITIONS.
In the US that is not a grant of the GPL. Copyright law explicitly gives
you the right to run any program you own a copy of.
--
John Hasler
jo...@dhh.gt.org
Dancing Horse Hill
Elmwood, WI USA
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> I hear that (plonked) GNUtian dak
I hear that (plonked) GNUtian dak doesn't believe that I've plonked
him (he joined GNUtian ams). Hint: I working in team. And, BTW, all
my plonks expire on annual basis. So don't be surprised to be re-
plonked at some time in the future, GNUtians dak and ams.
regards,
alexander.
David Kastrup
> Rui writes:
>> ANOTHER is RUNNING FOR ANY PURPOSE. And this one HAS NO CONDITIONS.
>
> In the US that is not a grant of the GPL. Copyright law explicitly
> gives you the right to run any program you own a copy of.
Where "own" means "lawfully acquired in an exchange of consideration
from somebody with the right to offer the software". Copyright law
does not give you the right to run programs you have stolen off a
truck, for example, or obtained by hacking into a server. Not even
when those programs were derived from GPLed software or intended to be
sold as such.
Rui Miguel Seabra
> Rui Miguel Seabra wrote:
> [...]
> > I've stated it well before you: the GNU GPL is an unilateral grant of
> > certain rights.
> >
> > One of them is, UNDER CERTAIN CONDITIONS, to DISTRIBUTE COPIES,
> ^^^^^^^^^^^^^^^^^
> 17 USC 109, stupid.
You still confuse RECEIVED COPY with DISTRIBUTING COPIES, and then make
absurd statements. Go read 17 USC 109.
John Hasler
> In the US that is not a grant of the GPL. Copyright law explicitly
> gives you the right to run any program you own a copy of.
David Kastrup writes:
> Where "own" means "lawfully acquired in an exchange of consideration from
> somebody with the right to offer the software".
I think you are confounding first sale with § 117.
> Copyright law does not give you the right to run programs you have stolen
> off a truck...
In that case you do not own them. You merely possess them.
> ...or obtained by [cr]acking into a server.
In that case you do own the physical copies and may have a right to run
them, but when the copyright owner sues you the court will order
destruction of your copies and payment of damages.
David Kastrup
> I wrote:
>> In the US that is not a grant of the GPL. Copyright law explicitly
>> gives you the right to run any program you own a copy of.
>
> David Kastrup writes:
>> Where "own" means "lawfully acquired in an exchange of consideration from
>> somebody with the right to offer the software".
>
> I think you are confounding first sale with § 117.
"Sale".
>> Copyright law does not give you the right to run programs you have
>> stolen off a truck...
>
> In that case you do not own them. You merely possess them.
>
>> ...or obtained by [cr]acking into a server.
>
> In that case you do own the physical copies
Wrong. You own the media, not the content.
> and may have a right to run them,
How would you have acquired that?
> but when the copyright owner sues you the court will order
> destruction of your copies
Because of the content to which you have no claim of ownership.
John Hasler
> In that case you do own the physical copies
David Kastrup writes:
> Wrong. You own the media, not the content.
TITLE 17 > CHAPTER 1 > § 101:
Copies are material objects, other than phonorecords, in which a work is
fixed by any method now known or later developed, and from which the work
can be perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device. The term copies includes the material
object, other than a phonorecord, in which the work is first fixed.
> Because of the content to which you have no claim of ownership.
The only sense in which one may "own content" is as shorthand for "own the
copyright". And one can certainly own copies of a work without owning the
copyright in it.
If I create a copy of a work in which you own the copyright out of
materials I own I may infringe your copyright in doing so but I still own
the copy.
Alexander Terekhov
John Hasler wrote: ...
You're (almost totally) wrong, and (plonked) GNUtian dak is (mostly)
right. "The right to access the copyrighted content must not be
confused with the incidental possession of the object that facilitates
practical exercise of the right. It is access to the copyrighted
material which has been parted with by the copyright owner in first
sale, and it is that right of access which is alienable under the
first sale doctrine, regardless of whether it is facilitated by
tangible or intangible means." -- "These Reply Comments are submitted
on behalf of the American Library Association, Association of Research
Libraries, American Association of Law Libraries, Medical Library
Association and Special Libraries Association (the "Libraries"), in
response to comments submitted pursuant to the Copyright Office's
Request for Public Comment dated June 5, 2000."
regards,
alexander.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> GNUtian dak is (mostly) right
Gifts (in the context of this thread: accepted unilateral copyright
grants) also fall under '"first sale". Price is irrelevant. Territorial
hint: see the so called Linux-Klausel in the most recent UrhG, my dear
(plonked) GNUtian dak.
regards,
alexander.
David Kastrup
> Alexander Terekhov wrote:
> [...]
>> GNUtian dak is (mostly) right
>
> Gifts (in the context of this thread: accepted unilateral copyright
> grants) also fall under '"first sale".
Sure, as long as you have proof that you were made a present of a copy
without attached conditions from the respective owner of the rights.
For example, if the copyright owner himself put software up with a
permission for downloading _without_ specifying that the use of
downloaded copies was subject to conditions.
> Price is irrelevant. Territorial hint: see the so called
> Linux-Klausel in the most recent UrhG, my dear (plonked) GNUtian
> dak.
Sure. But the GPL is not a gift certificate. It is a licence.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> Gifts
I hear that (plonked) GNUtian dak (still***) seems to be unaware that
"attached conditions" for downloads (I mean electronic distribution)
become binding only via affirmative action on part of recipient.
Territorial hints aside for a moment, he might (finally) want to read
Specht v. Netscape Communications Corp.
http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF
<quote>
unlike the user of Netscape Navigator or other click-wrap or shrink-
wrap licensees, the individual obtaining SmartDownload is not made
aware that he is entering into a contract. SmartDownload is available
from Netscape's web site free of charge. Before downloading the
software, the user need not view any license agreement terms or even
any reference to a license agreement, and need not do anything to
manifest assent to such a license agreement other than actually
taking possession of the product. From the user's vantage point,
SmartDownload could be analogized to a free neighborhood newspaper,
readily obtained from a sidewalk box or supermarket counter without
any exchange with a seller or vender. It is there for the taking.
[...]
Unlike most of his fellow Plaintiffs, Michael Fagan alleges that he
obtained SmartDownload from a shareware web site established and
managed by a third party. Defendants dispute Fagan's allegations,
insisting that the record shows that he must have obtained
SmartDownload from Netscape's web site in the same manner as the
other Plaintiffs discussed above. I need not resolve this factual
dispute. If Fagan in fact obtained SmartDownload from the Netscape
site, his claims are equally subject to my earlier analysis. If,
however, Fagan's version of events is accurate, his argument against
arbitration is stronger than that of the other Plaintiffs. While
Netscape's download page for SmartDownload contains a single brief
and ambiguous reference to the License Agreement, with a link to the
text of the agreement, the ZDNet site15 contains not even such a
reference. The site visitor is invited to click on a hypertext link
to "more information" about SmartDownload. The link leads to a
Netscape web page, which in turn contains a link to the License
Agreement. Assuming, for the sake of argument, that Fagan obtained
SmartDownload from ZDNet, he was even less likely than the other
Plaintiffs to be aware that he was entering into a contract or what
its terms might be, and even less likely to have assented to be
bound by the License Agreement and its arbitration clause.
Therefore, Plaintiff Michael Fagan cannot be compelled
</quote>
***) http://google.com/groups?selm=41B08E1A...@web.de
regards,
alexander.
David Kastrup
> Alexander Terekhov wrote:
> [...]
>> Gifts
>
> I hear that (plonked) GNUtian dak (still***) seems to be unaware that
> "attached conditions" for downloads (I mean electronic distribution)
> become binding only via affirmative action on part of recipient.
> Territorial hints aside for a moment, he might (finally) want to read
> Specht v. Netscape Communications Corp.
>
> http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF
>
> <quote>
>
> unlike the user of Netscape Navigator or other click-wrap or shrink-
> wrap licensees, the individual obtaining SmartDownload is not made
> aware that he is entering into a contract. SmartDownload is available
> from Netscape's web site free of charge. Before downloading the
> software, the user need not view any license agreement terms or even
> any reference to a license agreement, and need not do anything to
> manifest assent to such a license agreement other than actually
> taking possession of the product. From the user's vantage point,
> SmartDownload could be analogized to a free neighborhood newspaper,
> readily obtained from a sidewalk box or supermarket counter without
> any exchange with a seller or vender. It is there for the taking.
The newspaper is, but not its contents. You may not take parts of it
and reprint and reproduce them.
And if you think you can circumvent the reprinting permission by
taking hold of a few cubic feet of actual copies, then cutting and
pasting from them by a mechanical process, I very much doubt that the
nominal possession of the physical copies will save you from having to
obtain the copyright holders' permission for the resulting
publication.
There is a reason that the law is not interpreted by computers, but by
humans. Circumvention sounds like a good idea until you get a judge
annoyed.
Alexander Terekhov
Alexander Terekhov wrote:
[...]
> SmartDownload could be analogized to a free neighborhood newspaper,
> readily obtained from a sidewalk box or supermarket counter without
> any exchange with a seller or vender. It is there for the taking.
I hear that (plonked) GNUtian dak continues to exhibit strong symptoms
of incurable cluelessness (typical among GNUtians). Well, for the sake
of any possible benefit to anyone else, here's some clue:
http://google.com/groups?selm=4231A26A...@web.de
regards,
alexander.
John Hasler
> And if you think you can circumvent the reprinting permission by taking
> hold of a few cubic feet of actual copies, then cutting and pasting from
> them by a mechanical process, I very much doubt that the nominal
> possession of the physical copies will save you from having to obtain the
> copyright holders' permission for the resulting publication.
I think you might get away with literally doing that without infringing the
copyright[1] with actual pieces of paper. However, their is no equivalent
for machine-readable media (except perhaps paper tape or punched
cards). It's also so impractical as to be moot.
[1] There might be a problem with the exclusive right to create
derivatives. There is also the problem of taking hundreds of copies when
the distributor clearly intended one copy per customer, but that's not
related to copyright.
Alexander Terekhov
John Hasler wrote:
[...]
> I think you might get away with literally doing that without infringing the
> copyright[1] with actual pieces of paper. However, their is no equivalent
> for machine-readable media (except perhaps paper tape or punched
> cards). It's also so impractical as to be moot.
Can you grasp the idea that one can *save* downloads (lawful
electronic distribution) of "computer program" literary works on
whatever machine-readable media, and even include multiple works
on the same material object like HDD, diskette, or CD, and even
aggregate multiple works in one single archive, compressed folder,
"executable", or whatnot conglomerate of multiple works), all
without infringing anyones copyright?
>
> [1] There might be a problem with the exclusive right to create
> derivatives.
http://google.com/groups?selm=40EC0D4F...@web.de
regards,
alexander.
Bruce Lewis
> I think suggesting that an unmodified work has been recast or transformed in
> form is a pretty big stretch. Adapted comes the closest, but in my opinion
> adapting requires making at least some change to fit. Yet you've expressly
> stated that the original software has not been modified.
Meaning that the original source or object code has not been mutated.
In the sense I'm using "modified", a naked statue remains unmodified
when clothing is draped over it. An artist might think differently.
> Maybe building on other software without modifying it does result in a
> derivative work, but I don't think parsing the literal meaning of the
> statute is going to support the argument. I'd want to see some case law.
I won't know either until I see relevant case law. Alexander Terekhov
seems to think he knows already.
Isaac
> Isaac <is...@latveria.castledoom.org> writes:
>
>> I think suggesting that an unmodified work has been recast or transformed in
>> form is a pretty big stretch. Adapted comes the closest, but in my opinion
>> adapting requires making at least some change to fit. Yet you've expressly
>> stated that the original software has not been modified.
>
> Meaning that the original source or object code has not been mutated.
> In the sense I'm using "modified", a naked statue remains unmodified
> when clothing is draped over it. An artist might think differently.
I would find calling such draping "adapting" to be a stretch of both the
ordinary and the legal meaning of the work. Using a statute as a clothing
rack is adopting but not adapting. Now if instead you had to twist one of
the statutes arms around so that draped clothing would not fall, you've
done some adapting.
I don't think draping clothing over a statute creates a derivative
work.
>> Maybe building on other software without modifying it does result in a
>> derivative work, but I don't think parsing the literal meaning of the
>> statute is going to support the argument. I'd want to see some case law.
>
> I won't know either until I see relevant case law. Alexander Terekhov
> seems to think he knows already.
I think AT is on fairly solid ground when it comes to what consitutes
a derivative work. His opinion seems consistent with those game console
court decisions of the late 90s and early 2000s. And the literal meaning
of the statute seems to support his position better than yours.
Where I think he's completely out to lunch is in his interpretation of
first sale.
Isaac
Bruce Lewis
> On 16 Aug 2005 14:22:25 -0400, Bruce Lewis <brl...@yahoo.com> wrote:
> >
> > Meaning that the original source or object code has not been mutated.
> > In the sense I'm using "modified", a naked statue remains unmodified
> > when clothing is draped over it. An artist might think differently.
>
> I would find calling such draping "adapting" to be a stretch of both the
> ordinary and the legal meaning of the work. Using a statute as a clothing
> rack is adopting but not adapting. Now if instead you had to twist one of
> the statutes arms around so that draped clothing would not fall, you've
> done some adapting.
In the ordinary sense, the clothing adapts the art to a new purpose,
changing its character. The statue isn't a clothing rack. As to the
legal meaning, I don't particularly care, as my argument doesn't hinge
on that one word. What I'm saying is that it's unwise to assume that
because you haven't modified the original, that there's no derivative
work.
The U.S. Copyright office agrees with me:
http://www.copyright.gov/circs/circ14.html#examples
"Sound recording (long-playing record in which two of the
10 selections were previously published on a 45 rpm single)"
"Biography of John Doe (which contains journal entries and letters by
John Doe)"
I'll give Mr. Terekhov's argument more credence when he gets the
copyright office to move those two examples to the "compilation"
section.
> I think AT is on fairly solid ground when it comes to what consitutes
> a derivative work. His opinion seems consistent with those game console
> court decisions of the late 90s and early 2000s.
Not at all. That would be true if the game genie case was won on the
basis of no modification happening. The court found that modification
*was* happening, but decided there was no derivative for other reasons.
The commentary in the opinion about programs that enhance other programs
rarely being derivative works does not mention modification. I wouldn't
rely on the Terekhov test to decide what is and isn't a derivative work.
Putting the Mona Lisa in a halter top and pigtails while smoking a
cigarette might be a derivative work under the Terekhov test if you
paint directly onto the canvas. Put glass over the Mona Lisa before you
paint, and it's a compilation under the Terekhov test. I don't buy it.
Isaac
> Isaac <is...@latveria.castledoom.org> writes:
>
>> On 16 Aug 2005 14:22:25 -0400, Bruce Lewis <brl...@yahoo.com> wrote:
>> >
>> > Meaning that the original source or object code has not been mutated.
>> > In the sense I'm using "modified", a naked statue remains unmodified
>> > when clothing is draped over it. An artist might think differently.
>>
>> I would find calling such draping "adapting" to be a stretch of both the
>> ordinary and the legal meaning of the work. Using a statute as a clothing
>> rack is adopting but not adapting. Now if instead you had to twist one of
>> the statutes arms around so that draped clothing would not fall, you've
>> done some adapting.
>
> In the ordinary sense, the clothing adapts the art to a new purpose,
> changing its character. The statue isn't a clothing rack. As to the
> legal meaning, I don't particularly care, as my argument doesn't hinge
> on that one word. What I'm saying is that it's unwise to assume that
> because you haven't modified the original, that there's no derivative
> work.
>
> The U.S. Copyright office agrees with me:
> http://www.copyright.gov/circs/circ14.html#examples
>
> "Sound recording (long-playing record in which two of the
> 10 selections were previously published on a 45 rpm single)"
I think they are saying that the 10 song compilation is derivative
of the original 2 song compilation and not that the individual
selections copied unto the LP have become derivative works of the
individual selections on the single.
Isaac
Bruce Lewis
Did I say something earlier that made it sound like I thought original
works become derivative works in and of themselves? I certainly didn't
intend to. I'm only refuting the assertion that if no lines of program
code are modified, it necessarily follows that there is no derivative
work. In this example, nobody modified a single note of the original
music.
Alexander Terekhov
Isaac wrote:
[...]
> Where I think he's completely out to lunch is in his interpretation of
> first sale.
Once again: I'm in good company.
http://google.com/groups?selm=slrna7gh4...@latveria.castledoom.org
<quote authors=Jeffrey Siegal, Isaac>
:What about the first sale doctrine? Indeed, if users own their own
:copies, including binary copies, of the software, than those users can
:transfer those copies without complying with the GPL's requirements as
:to source code access.
Interesting. I really hadn't thought about that and my attempts
to digest the implications on the fly are making my head hurt.
I can't resolve the problems introduced by first sale without
either making the user of GPL'd code a non owner or deciding
that users really can transfer their copies, no matter what the
GPL says.
</quote>
regards,
alexander.
Alexander Terekhov
Bruce Lewis wrote:
[...]
> intend to. I'm only refuting the assertion that if no lines of program
> code are modified, it necessarily follows that there is no derivative
> work.
It's not a derivative work if it's a (non-derivative) compilation. You
just can't have it both ways (derivative compilations based on some other
preexisting compilation(s) aside for a moment). Hey, even RMS admitted it
twice: <http://lists.debian.org/debian-legal/2004/05/msg00390.html>.
regards,
alexander.