On 5/21/05, Raul Miller <[EMAIL PROTECTED]> wrote: > On 5/21/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > On 5/21/05, Raul Miller <[EMAIL PROTECTED]> wrote: > > > After looking at this for a bit, I'm thinking that Quagga is based on > > > libsnmp and that libsnmp is based on libssl. > > > > Not in any copyright sense whatsoever. And what, every Perl script is > > "based on" Perl? Every Lotus 1-2-3 macro is "based on" Lotus? Come > > back to Earth, please. > > It's very clear that "based on" is the essence of what copyright > protects in the case of derivative works, and providing > supposed counter examples which haven't been heard in > court doesn't make that go away.
Lotus, actually, has been heard in court. Remember Lotus v. Borland? The macro language in 1-2-3 was held to be uncopyrightable, as was the menu interface with which it was fairly closely interlocked. (Held at appellate level, affirmed by an evenly divided Court, so no opinion at Supreme Court level.) A large fraction of the discussion in the Supreme Court oral argument was about users' existing spreadsheets that used the 1-2-3 macro language -- otherwise known as its external API -- and how Lotus ought not to permitted to leverage the copyright monopoly in order to lock those users into its implementation of that API, whether or not they originated it. If it were correct to call all of those spreadsheets "derivative works" of 1-2-3, then they certainly would have that leverage. You can't just pull some common sense usage of "based on" out of a hat and say that's what consitutes a derivative work. The vast preponderance of case law is against you here, based on the cases I've read (many of which I've cited). Have you any counterexamples to offer in which a program was held to be a derivative work of the language in which it was written, an API which it called, or an engine on which it ran -- except via a "mise en scene" doctrine with regard to a story-type work? > > > > The fact that they are independent works of authorship, gathered into > > > > a collection, matters. > > > > > > How could Quagga have been written without libsnmp? > > > > > > How could libsnmp have been written without libssl? > > > > > > [Answer: they'd each have been very different.] > > > > Idea / expression dichotomy. Deal with it. > > And I'm not saying that the ideas are copyrighted. If the ideas are not copyrighted, and API usage and linkage do not produce a derivative work (as I believe there is no question they do not based on the cited case law), then by what other theory are they derived? Copyright is not patent, and use by reference is not plagiarism of expression. [snip bits of dead horse] > > If you are saying that you want to ignore the law, you are (I hope) on > > the wrong forum. > > I think there's a lot of ground between "getting bogged down in > the little details" and "ignoring the law". > > (Except, in a sense, "getting bogged down in the little details" can > be a way of ignoring the law (when the big important concepts > get neglected).) I am not feeling particularly bogged down, myself. The truth is in the details, along with the devil; and the law, especially in common-law countries, is composed almost entirely of details. In this discussion, the differences between breach of contract and copyright infringement, between "scope of license" and the complete agreement, and especially between derivative and collective works matter a great deal. They are, in fact, the "big important concepts". > > Did you miss the _trademark_ license agreement, unrelated in any way > > to the license (the GPL) under which Progress claimed rights to copy, > > modify, and distribute MySQL's code? > > I think you'll agree that the crucial question here is: what license was > granted in the agreements between Progress and MySQL? I hope you'll read Progress Software v. MySQL again and agree that the crucial fact is that the claims with respect to the trademark license and with respect to the GPL were considered quite separately, and injunction granted on the former and denied on the latter. No consideration of any feature of the NuSphere/MySQL relationship, other than the GPL and the handling of source code and binaries, entered into the two paragraphs in which the GPL claims were considered and rejected as grounds for injunction. > > > I do believe that my specific point here, which I'm guessing you're > > > trying to refute, is a point which is based rather heavily on > > > contract law. > > > > If you are trying to say that some other license of copyright was > > involved in any meaningful way, or that the judge did not interpret > > the GPL in the GPL section of her opinion but some amalgam of the GPL > > and some alternate copyright license, then you are in the astrology > > zone of arrant nonsense based on the facts at hand. > > http://www.linuxjournal.com/node/6025/print Did you think this supported some argument you were making? <quote> This author obtained from court pleadings the original international agreement by which a publicly traded, long-established business software company based in Massachusetts obtained remarketing rights from a young, offshore, small developer in Finland. Ugly surprise: these two companies agreed to do a big-impact, large-dollar deal on a mere nine-paragraph contract. The agreement ran all of 1.25 pages. Progress Software agreed to pay roughly $300,000 US to a dynamic foreign company in a new, unfamiliar (to Progress) industry segment, on the equivalent of the proverbial envelope. MySQL AB, the Finnish company, blessed the Massachusetts vendor's procurement of its key product by a short statement indicating some future contract would be utilized ``later'', triggering ``a total of up to $2.5 million''. The resulting fight shows precisely why experienced business people (including lawyers) frown at the optimistic idea of ``let's just trust each other and figure out later the deal and the details.'' ... OSS loyalists hoping for court affirmation of the GNU model may be frustrated: both sides of the suit have already raised legal arguments unrelated to the OSS issue. For example, MySQL AB has already obtained (on February 28) a partial injunction against Progress and its young OSS subsidiary NuSphere, but on trademark law grounds, not enforcement of the GPL. The federal judge found the GPL issue too uncertain to adjudicate in this litigation's early, summary phase. </quote> It seems clear to me from the judge's opinion that the "remarketing rights" your commentator mentions were focused exclusively on trademark issues, and the copyright license necessary to make copies of the software for distribution was offered solely through the GPL. (Note, by the way, that both parties had issued press releases at the time the remarketing agreement was originally inked, in which they spoke of Progress / Nusphere as having "funded" the relicensing of MySQL under the GPL, in lieu of its previous licensing terms.) We'll see for certain once someone gets hold of the full docket, if that's still possible. Cheers, - Michael
