Quoting Chris Travers ([email protected]): > In the GPL v2 it is less clear. At its outer limits however, it can > only permit things prohibited under copyright law. Generally RMS > seems to think this is not permissible, and most other people outside > the FSF don't listen.
FSF folks occasionally spend time advocating behaviour they would like to see occur when the actual question is whether a course of action violates someone's copyright rights or not. I can only suggest careful and skeptical listening to hear _why_ they assert something is tortious. I like your characterisation that GPVv2 (and, I would add, any licence) can only permit things prohibited under copyright law -- concerning an instance of someone's creative work (for which certain reserved rights would otherwise default to the copyright owner and not be granted at all). When a second party then creates a derivative of that work, adding his/her own copyrighted elements, FSF are welcome to have an opinion about what permmissions the second party is permitted to grant concerning his/her property, but I can't recall hearing credible reasoning supporting this opinions. (OTOH, points they make about the second party lacking ownership over the reused work and thus not having the right to grant additional permissions to _it_ are well taken.) Unfortunately, you appear to be advising Mr. Krause that adding a 'linking exception' would be tolerable not merely concerning Mr. Krause's copyright interest but also would somehow fail to infringe the borrowed work's copyright interest. It seems to me that such can be true only if _either_ the borrowed elements are ineligible for copyright coverage _or_ aren't pervasive enough to trigger the applicable test for 'substantial similarity' (abstraction, filtration, comparison for non-literal copying, probably 'total concept and feel' for literal copying). In any specific case, those are, as the saying goes, triable questions of fact. > Additionally there is the question (much discussed on this list not > too long ago) whether copyright law even allows restricting secondary > markets for practical tools in this way. Rick Moen and I strongly > disagree on this issue. I said nothing about 'practical tools'. The usual points of contention in the more interesting sorts of copyright infringement cases under USA law are whether copied elements (if they rise above the rather low bar for originality) are functional or expressive, and whether an allegedly expressive element is more properly characterised as an idea or method and thus not eligible for copyright at all (albeit potentially patentable). Caselaw in this area (involving literal copying) typically works out the way Apple v. Microsoft did, where the Ninth Circuit flatly rejected Apple's assertion of copyright protection over the way MacOS used icons, program windowing, pull-down menus, and distinctive widgets, saying Apple could not get 'patent-like protection for the idea of a GUI' -- the idea/expression divide from Baker v. Selden, Feist v. Rural, etc. You cannot copyright an idea; you cannot patent an expression. This was likewise the key point in Lotus v. Borland, where the court held that the program menus Lotus sued over embodied the _methods_ used by the program to operate, and therefore Quattro Pro's verbatim copies of 469 words in 50 Lotus 1-2-3 menus did not infringe. > I think the clear pattern of cases including Oracle v. Google points > towards a negative answer here. I think you are drawing a rather sweeping and seemingly non-sequitur conclusion. _______________________________________________ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
