[FYI] DANGEROUS LIAISONS – SOFTWARE COMBINATIONS AS DERIVATIVE WORKS?
Alexander Terekhov
-----
PRELIMINARY DRAFT 2006/4/3 – FOR DISCUSSION PURPOSES ONLY
Accepted for Publication in Issue 21:4 (Fall 2006) of the
BERKELEY TECHNOLOGY LAW JOURNAL
DANGEROUS LIAISONS – SOFTWARE COMBINATIONS AS DERIVATIVE WORKS?
Distribution, Installation and Execution of Linked Programs under
Copyright Law, Commercial Licenses and the GPL
By Lothar Determann
Prof. Dr. Lothar Determann teaches courses on Computer and Internet
law at the University of California Berkeley School of Law (Boalt Hall),
University of San Francisco School of Law and Freie Universität Berlin
(www.lothar.determann.name) and practices law as a partner in the
international technology practice group of Baker & McKenzie LLP, San
Francisco/Palo Alto office (www.bakernet.com). The author is grateful
for assistance from his students, in particular Tal Lavian, Principal
Scientist at Nortel Labs (valuable comments from computer science
perspective), Steven B. Toeniskoetter, Lars F. Brauer, and Neda
Shabahang (legal research and footnote editing).
-----
regards,
alexander.
Alexander Terekhov
First sale, copyright misuse and all that (I don't particularly agree
with his analysis and characterization of *governing* [he seems to
hightlight some bad/highly-criticized/overturned... probably poor legal
research by Neda) caselaw on software derivatives, but his conclusions
and summaries are mostly OK... except that regarding antitrust he seems
to be totally unaware of Wallace...)
Nice to see real law professors and practitioners catching up. :-)
regards,
alexander.
Alexander Terekhov
b) Copyright Misuse
By imposing GPL § 2(b) on licensees, copyright owners try to magnify
their rights beyond those sanctioned by the Copyright Act in two
different ways. First, Section 103 of the Copyright Act allocates
ownership rights to authorized derivative works to the author to
incentivize further investment in additional creativity.274 In contrast,
Section 2(b) of the GPL, requires creators of derivative works to
forfeit their exclusion rights and any chance to generate licensing
revenue.275 Second, if the term “derived work” were found to encompass
more than “derivative works” and included, for example, compilations and
other forms of software combinations, Section 2(b) of the GPL would seek
to prohibit activities that Section 106 of the Copyright has not
reserved for copyright owners and thus exponentially increase the impact
caused by the first copyright magnifying mechanism.276
Given the fact that copyright misuse is an equitable concept under U.S.
law, it is difficult to predict if and how a court would apply this
doctrine in the context of the GPL. On one hand, the non-profit status
and idealistic goals pursued by the proponents and original adopters of
the GPL may sway courts in favor of the GPL. On the other hand, the
“copyleft” policy manifested in the GPL seems a more direct attack on
the delicate balance between access and protection in the Copyright
Act277 than any other licensing practice that has so far caused courts
to find copyright misuse.278 In fact, the intended objective behind
Section 2(b) of the GPL is to eliminate the effects of copyright
protection for computer programs and generally replace it by the rules
of the GPL.279 This flies in the face of the many decisions by U.S.
courts that found it necessary to protect economic interests of software
copyright owners who pursued proprietary licensing models.280 Also, more
and more companies use the GPL for purposes other than idealism. If
courts enforce clauses like Section 2(b) of the GPL, they would probably
also have to accept it if proprietary software companies start
prohibiting combinations of their programs with other software beyond
the boundaries of the Copyright Act. This could have potentially
significant implications for interoperability.
Thus, for purposes of U.S. copyright law, Section 2(b) of the GPL seems
to raise significant issues under the doctrine of copyright misuse,
particularly, if it were interpreted to cover more than derivative works
as defined by the Copyright Act.
-------
regards,
alexander.
Alexander Terekhov
-------
a) Competition Law
As previously observed, the applicability and effects of competition law
depend largely on the situation (i.e., on the affected markets and the
parties' market power.)271 Thus, competition laws would probably play an
insignificant role with respect to a relationship between two individual
developers, but they could well come into play if a number of dominant
suppliers272 or purchasers273 pushed to establish the GPL as a standard
with the intent to drive "software only" companies from the market.
-------
regards,
alexander.
David Kastrup
> -------
> b) Copyright Misuse
>
> By imposing GPL § 2(b) on licensees, copyright owners try to magnify
> their rights beyond those sanctioned by the Copyright Act in two
> different ways. First, Section 103 of the Copyright Act allocates
> ownership rights to authorized derivative works to the author to
> incentivize further investment in additional creativity.274 In contrast,
> Section 2(b) of the GPL, requires creators of derivative works to
> forfeit their exclusion rights and any chance to generate licensing
> revenue.
Not at all: creators of derivative works have all the exclusion rights
they want to and more. In fact, they are excluded from distributing
the combined product under terms different from the GPL.
Which is common practice for software, except that usually the
creators are excluded from distributing the combined product under
_any_ terms.
> 275 Second, if the term “derived work” were found to encompass more
> than “derivative works” and included, for example, compilations and
> other forms of software combinations,
Which is nonsensical since the term "derived work" encompasses exactly
that which the law calls "derivative works". The GPL does not seek to
change the definition of the law, and indeed it states:
5. You are not required to accept this License, since you have
not signed it. However, nothing else grants you permission to
modify or distribute the Program or its derivative works. These
actions are prohibited by law if you do not accept this License.
Therefore, by modifying or distributing the Program (or any work
based on the Program), you indicate your acceptance of this
License to do so, and all its terms and conditions for copying,
distributing or modifying the Program or works based on it.
So the GPL, by explicit statement and nature, is restricted to the
scope of copyright law. Copyright misuse is not possible.
> Section 2(b) of the GPL would seek to prohibit activities that
> Section 106 of the Copyright has not reserved for copyright owners
> and thus exponentially increase the impact caused by the first
> copyright magnifying mechanism.276
One could try arguing that the FSF's interpretation of the scope of
copyright law is broader than the common legal interpretation. But
since that interpretation is not ingrained into the GPL, the GPL can't
be faulted for it.
> This flies in the face of the many decisions by U.S. courts that
> found it necessary to protect economic interests of software
> copyright owners who pursued proprietary licensing models.
But they are allowed to continue pursuing their own models.
> Also, more and more companies use the GPL for purposes other than
> idealism.
The GPL detractors really need to focus whether they want to claim
that using the GPL can't be economically feasible or that it can.
> If courts enforce clauses like Section 2(b) of the GPL, they would
> probably also have to accept it if proprietary software companies
> start prohibiting combinations of their programs with other software
> beyond the boundaries of the Copyright Act.
But the GPL explicitly states that you are not required to accept it,
so it can't exceed the boundaries of the copyright act.
> Thus, for purposes of U.S. copyright law, Section 2(b) of the GPL
> seems to raise significant issues under the doctrine of copyright
> misuse, particularly, if it were interpreted to cover more than
> derivative works as defined by the Copyright Act.
This is nonsensical. The GPL can't be blamed for being interpreted
wrongly when it just refers to copyright law.
--
David Kastrup, Kriemhildstr. 15, 44793 Bochum
David Kastrup
> The Prof. seems to be totally unaware of "Wallace v GPL"
Uh, nobody who wants to be taken seriously will sully himself by
mentioning a lawsuit from a private person without legal support who
is incapable of even stating a claim in multiple attempts.
> and yet he notes:
>
> -------
> a) Competition Law
>
> As previously observed, the applicability and effects of competition law
> depend largely on the situation (i.e., on the affected markets and the
> parties' market power.)271 Thus, competition laws would probably play an
> insignificant role with respect to a relationship between two individual
> developers, but they could well come into play if a number of dominant
> suppliers272 or purchasers273 pushed to establish the GPL as a standard
> with the intent to drive "software only" companies from the market.
> -------
I suppose you look up "standard" in a computer dictionary of your
choice. A standard is about making criteria for subsequent creation
of _independent_ copyrightable material, by coercing _agreement_ in
separate pieces of software, not mere _compliance_ with copying
conditions.
Alexander Terekhov
starting to exibit your stupidity as usual?
------
2. GPL Terminology and Interpretation
a) “Works based on the Program”
The first operative Section of the GPL (Section 0) reads as follows:
This License applies to any program or other work which contains a
notice placed by the copyright holder saying it may be distributed under
the terms of this General Public License. The ‘Program,’ below, refers
to any such program or work, and a ‘work based on the Program’ means
either the Program or any derivative work under copyright law: that is
to say, a work containing the Program or a portion of it, either
verbatim or with modifications and/or translated into another language.
(Hereinafter, translation is included without limitation in the term
‘modification.’) Each licensee is addressed as ‘you.’
Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The act of running
the Program is not restricted, and the output from the Program is
covered only if its contents constitute a work based on the Program
(independent of having been made by running the Program). Whether that
is true depends on what the Program does.
As is common in commercial contracting practice, the first Section of
the GPL contains a number of definition and specifications that apply to
the document as a whole (e.g., the first sentence and the first ten
words of the second sentence define the meaning of the capitalized term
“Program”). Less common, however, are the explanatory notes that the GPL
drafters interwove with the legally binding definitions (e.g., the last
sentence acknowledges that the conditions in the preceding half-sentence
may not always be met in practice). The cause for this anomaly seems to
lie in the genesis of the document: it was written by programmers for
programmers. In order to make the document useful for non-lawyers (and
projects without a budget for legal advice), and to establish the GPL as
a standard, the GPL drafters tried to draft it as user-friendly and
accessible to programmers as possible.
Along these lines, the second sentence of Section 0 defines “works based
on the Program” as the Program itself or “any derivative work under
copyright law” followed by a (not entirely accurate) interpretive
explanation regarding what the term “derivative works” means under
copyright law. This explanation, introduced with “that is to say,” gives
an indication of what the GPL drafters thought, hoped or may argue in a
dispute, is the meaning of the term “derivative works.” Section 2 of the
GPL contains additional explanations and declarations of intent, which
even include “collective works,” i.e., a term defined by the Copyright
Act in contrast to the term “derivative work.”250 In order to resolve
these textinternal contradictions, it would seem appropriate to rely on
the “operative” portion of the definition in Section 0 (which contains
the reference to the Copyright Act) and treat the “explanatory notes” as
statements of opinion that have been added for convenience purposes
only.251 Accordingly, the GPL would be interpreted to define “work based
on the Program” to mean “derivative work as defined by the Copyright
Act.”252
b) Derived Works
The first sentence of Section 2 of the GPL permits modifications to the
GPLed program in reference to the defined term “work based on the
Program.” The following sentences of Section 2 contain a number of
license conditions and explanations and use a number of other terms to
describe the result of modifications besides “work based on the
Program,” including modified files,253 modified program,254 and modified
work.255 The critical Subsection (b) refers to “any work . . . that in
whole or in part contains or is derived from the Program or any part
thereof.”
Taken out of context, each of these terms seems to go well beyond the
statutory definition of derivative works in the Copyright Act, because
the statutory definition is not satisfied by every modification or any
work that contains any part of another work, or that is derived from any
part of another work. As discussed, under the Copyright Act, a
combination of code with a GPLed program constitutes a derivative work
of the GPLed program only if the combination (i) is sufficiently
permanent, (ii) contains significant and creative portions of the GPLed
program, (iii) is creative in its own right, and (iv) involves
significant and creative internal changes to the GPLed program.256
In context, however, it appears that the drafters of the GPL randomly
chose substitutes to the somewhat awkward term “work based on the
Program” and used the substitute terms synonymously to improve the
sentence flow and readability. This impression is confirmed throughout
the document, which also uses other substitutes, including the
“derivative or collective works based on the Program”257 and “derivative
works.”258
Some of the explanations throughout the GPL as well as the Free Software
Foundation’s FAQ259 and “Lesser General Public License”260 imply that
the drafters of the GPL intended to cover software combinations that
would not qualify as derivative works under the Copyright Act according
to the test developed in this Article.261 This is primarily evidence of
a difference of opinion in the application of copyright law––and does
not have to mean that the condition in Section 2(b) of the GPL covers
more than derivative works as defined by the Copyright Act. Yet,
uncertainties remain given the fact that the “explanations” appear
within the license text.
------
regards,
alexander.
Alexander Terekhov
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > The Prof. seems to be totally unaware of "Wallace v GPL"
>
> Uh, nobody who wants to be taken seriously will sully himself by
> mentioning a lawsuit from a private person without legal support who
> is incapable of even stating a claim in multiple attempts.
How many times do you want me to quote Tinder, retard?
http://www.terekhov.de/Wallace-case-FAQ-for-dummies-v1.9.txt
------
that Plaintiff's Third Amended Complaint States a Claim Upon Which Relief
can be Granted and that Plaintiff's Allegations Sufficiently Set Forth a
Violation of the Rule of Reason (but, unfortunately, being in a partially
drunk condition, he was fooled by the FSF to believe that Plaintiff Has Not
Alleged Antitrust Injury). Judge Tinder ruled: "To establish a Section 1
claim under the rule of reason test, a plaintiff must prove that "(1)
that the defendants contracted, combined, or conspired among each other;
(2) that the combination or conspiracy produced adverse, anti-competitive
effects within relevant product and geographic markets; (3) that the
objects of and the conduct pursuant to that contract or conspiracy were
illegal; and (4) that the plaintiffs were injured as a proximate result
of that conspiracy." Tunis Bros. Co. v. Ford Motor Co., 952 F.2d 715, 722
(3d Cir. 1991). In this case, it appears that Mr. Wallace has made the
necessary allegations of FSF's unlawful contract and conduct. In his Third
Amended Complaint, he specifically alleges that FSF conspired with others,
including International Business Machines Corporation, Red Hat Inc. and
Novell Inc., to control the price of available software within a defined
market through the GPL. Primarily at issue in FSF's motion is whether Mr.
Wallace has adequately alleged that the GPL had a resulting anticompetitive
effect.
[... reduction in IP output under GPL price-dumping conspiracy ...]
This may be considered anticompetitive effect, and it certainly can be
inferred from what Mr. Wallace alleges in his Third Amended Complaint.
Therefore, this court finds that the Third Amended Complaint states a
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
claim for violation of Section 1 of the Sherman Act, under the rule of
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
reason doctrine."
------
regards,
alexander.
David Kastrup
> Hey lazy GNUtian dak, why don't you simply read the paper before
> starting to exibit your stupidity as usual?
>
> ------
> 2. GPL Terminology and Interpretation
>
> a) “Works based on the Program”
>
> The first operative Section of the GPL (Section 0) reads as follows:
>
> This License applies to any program or other work which contains a
> notice placed by the copyright holder saying it may be distributed under
> the terms of this General Public License. The ‘Program,’ below, refers
> to any such program or work, and a ‘work based on the Program’ means
> either the Program or any derivative work under copyright law.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Read this again and try understanding what "under copyright law means".
> Along these lines, the second sentence of Section 0 defines “works
> based on the Program” as the Program itself or “any derivative work
> under copyright law” followed by a (not entirely accurate)
> interpretive explanation regarding what the term “derivative works”
> means under copyright law. This explanation, introduced with “that
> is to say,” gives an indication of what the GPL drafters thought,
> hoped or may argue in a dispute, is the meaning of the term
> “derivative works.” Section 2 of the GPL contains additional
> explanations and declarations of intent, which even include
> “collective works,” i.e., a term defined by the Copyright Act in
> contrast to the term “derivative work.”250 In order to resolve these
> textinternal contradictions, it would seem appropriate to rely on
> the “operative” portion of the definition in Section 0 (which
> contains the reference to the Copyright Act) and treat the
> “explanatory notes” as statements of opinion that have been added
> for convenience purposes only.251 Accordingly, the GPL would be
> interpreted to define “work based on the Program” to mean
> “derivative work as defined by the Copyright Act.”252
So where is the problem?
[...]
> Taken out of context, each of these terms seems to go
"Taken out of context"...
> In context, however, it appears that the drafters of the GPL
> randomly chose substitutes to the somewhat awkward term “work based
> on the Program” and used the substitute terms synonymously to
> improve the sentence flow and readability. This impression is
> confirmed throughout the document, which also uses other
> substitutes, including the “derivative or collective works based on
> the Program”257 and “derivative works.”258
>
> Some of the explanations throughout the GPL as well as the Free
> Software Foundation’s FAQ259 and “Lesser General Public License”260
> imply that the drafters of the GPL intended to cover software
> combinations that would not qualify as derivative works under the
> Copyright Act according to the test developed in this Article.261
> This is primarily evidence of a difference of opinion in the
> application of copyright law––and does not have to mean that the
> condition in Section 2(b) of the GPL covers more than derivative
> works as defined by the Copyright Act. Yet, uncertainties remain
> given the fact that the “explanations” appear within the license
> text. ------
Well, did you read what you quoted? It says exactly what everybody is
telling you: copyright misuse is not a question since the GPL does not
even try or claim to do anything beyond the scope of copyright.
Alexander Terekhov
David Kastrup wrote:
[...]
> Well, did you read what you quoted? It says exactly what everybody is
Piss off, stupid dak.
http://groups.google.com/group/gnu.misc.discuss/msg/d5b004fb9a42c44c
I impose a day long plonk on you. See you tomorrow or (most likely) next
week. HAD.
regards,
alexander.
David Kastrup
> David Kastrup wrote:
> [...]
>> Well, did you read what you quoted? It says exactly what everybody is
>> telling you: copyright misuse is not a question ^^^^^^^^^
>
> Piss off, stupid dak.
>
> http://groups.google.com/group/gnu.misc.discuss/msg/d5b004fb9a42c44c
>
> I impose a day long plonk on you.
You actually promised me a permanent plonk, but it is not surprising
that you are not good for your word.
Alexander Terekhov
David Kastrup wrote:
[...]
> You actually promised me a permanent plonk, but it is not surprising
> that you are not good for your word.
I never promised you a permanent plonk. I plonk at annual basis at a
max.
http://groups.google.com/group/gnu.misc.discuss/msg/e9d01c368437012d
regards,
alexander.
Alexander Terekhov
The gang at ifross fires back!!!
-------
Lother Determann behandelt in seinem Beitrag „Softwarekombinationen unter
der GPL“ (Gewerblicher Rechtsschutz und Urheberrecht, Internationaler Teil
2006, Heft 8-9, S. 645) schwerpunktmäßig die amerikanische Perspektive zur
Frage der Bearbeitung von GPL-Software. Die deutsche Diskussion habe hier
„Nachholbedarf“. Von besonderem Interesse ist das für Determanns Ansatz
zentrale 4-Stufen-Modell, anhand dessen das Vorliegen eines „derivative
work“ im Sinne des US-Urheberrechts geprüft werden soll. Es ist in der Tat
ein Desiderat, mehr darüber zu erfahren, wie ein "derivative work" von
einer bloßen Zusammenstellung selbstständiger Programme nach US-Recht
abzugrenzen ist. Schließlich ist die GPL vor dem Hintergrund des US-
Urheberrechts verfasst worden. US-Recht ist aufgrund des
Territorialitätsprinzips zudem relevant, soweit Urheberrechtsschutz in den
USA in Frage steht. Nicht ganz einleuchten mag dagegen der Vorschlag, die
eigenen Aussagen der GPL zur Abgrenzung der Copyleft-Bestimmung am Ende
von Ziffer 2 unbeachtet zu lassen, da es sich um bloß "erläuternde
Anmerkungen" handele. Determann macht es sich hier wohl zu einfach, wenn
er alleine die gesetzlichen Kategorien anwenden möchte. Die GPL liest sich
eher so, als sollten diese Kategorien vertraglich modifiziert werden.
Dementsprechend sind die Eingrenzungen am Ende von Ziffer 2 bindender
Vertragsbestandteil. Problematisch ist auch sein Ansatz, das für das US-
Recht entwickelte viergliedrige Prüfungsschema zum "derivative work" ohne
weiteres zur näheren Bestimmung des Begriffs der Bearbeitung gemäß § 3 des
deutschen Urheberrechtsgesetzes heranziehen zu wollen. Wie es zu diesem
Implantat kommen soll, bleibt letztlich unklar. Wer wie Determann alleine
auf die urheberrechtlichen Kategorien abstellen möchte und eine vertragliche
Modifikation der Gesetzesbegriffe ablehnt, schneidet sich jegliche
Möglichkeit ab, die Maßstäbe des US-Rechts bindend einzubeziehen. Es
handelt sich dann um reine Rechtsvergleichung, die höchstens den Rang einer
"persuasive authority" erreichen kann. Es ist nur folgerichtig, wenn
Determann für die GPL Version 3 eine Streichung der Erläuterungen am Ende
von Ziffer 2 verlangt. Kurzum: ein vielschichtiger Beitrag, der die
deutsche Diskussion bereichern dürfte, auch wenn man nicht jedes Ergebnis
teilen muss.
-------
He he.
regards,
alexander.
David Kastrup wrote:
>
> Alexander Terekhov <tere...@web.de> writes:
>
> > Hey lazy GNUtian dak, why don't you simply read the paper before
> > starting to exibit your stupidity as usual?
> >
> > ------
> > 2. GPL Terminology and Interpretation
> >
> > a) “Works based on the Programâ€
> >
> > The first operative Section of the GPL (Section 0) reads as follows:
> >
> > This License applies to any program or other work which contains a
> > notice placed by the copyright holder saying it may be distributed under
> > the terms of this General Public License. The ‘Program,’ below, refers
> > to any such program or work, and a ‘work based on the Program’ means
> > either the Program or any derivative work under copyright law.
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>
> Read this again and try understanding what "under copyright law means".
>
> > Along these lines, the second sentence of Section 0 defines “works
> > based on the Program†as the Program itself or “any derivative work
> > under copyright law†followed by a (not entirely accurate)
> > interpretive explanation regarding what the term “derivative worksâ€
> > means under copyright law. This explanation, introduced with “that
> > is to say,†gives an indication of what the GPL drafters thought,
> > hoped or may argue in a dispute, is the meaning of the term
> > “derivative works.†Section 2 of the GPL contains additional
> > explanations and declarations of intent, which even include
> > “collective works,†i.e., a term defined by the Copyright Act in
> > contrast to the term “derivative work.†250 In order to resolve these
> > textinternal contradictions, it would seem appropriate to rely on
> > the “operative†portion of the definition in Section 0 (which
> > contains the reference to the Copyright Act) and treat the
> > “explanatory notes†as statements of opinion that have been added
> > for convenience purposes only.251 Accordingly, the GPL would be
> > interpreted to define “work based on the Program†to mean
> > “derivative work as defined by the Copyright Act.†252
>
> So where is the problem?
>
> [...]
>
> > Taken out of context, each of these terms seems to go
>
> "Taken out of context"...
>
> > In context, however, it appears that the drafters of the GPL
> > randomly chose substitutes to the somewhat awkward term “work based
> > on the Program†and used the substitute terms synonymously to
> > improve the sentence flow and readability. This impression is
> > confirmed throughout the document, which also uses other
> > substitutes, including the “derivative or collective works based on
> > the Program†257 and “derivative works.†258
> >
> > Some of the explanations throughout the GPL as well as the Free
> > Software Foundation’s FAQ259 and “Lesser General Public License†260
> > imply that the drafters of the GPL intended to cover software
> > combinations that would not qualify as derivative works under the
> > Copyright Act according to the test developed in this Article.261
> > This is primarily evidence of a difference of opinion in the
> > application of copyright law––and does not have to mean that the
> > condition in Section 2(b) of the GPL covers more than derivative
> > works as defined by the Copyright Act. Yet, uncertainties remain
> > given the fact that the “explanations†appear within the license