Re: Copyright/Distribution questions (Emacs/Orgmode)

[Stephen J. Turnbull]

W. Greenhouse writes:

 > Your 10 line program likely does not pass the de minimis threshold to be
 > copyrightable in the first place,

I think you'll find there is no such de minimis in copyright law.  Eg,
surely individual haiku are copyrightable.

 > but that aside, I don't think a court would have any problem
 > recognizing it as not a "change to Emacs," if it's not distributed
 > with something calling itself Emacs.

Jambunathan claims that his files haven't been distributed with
something calling itself Emacs, either.  They're been distributed with
what (as a maintainer of a fork of Emacs considering incorporating
org-mode) I too consider a separate work, org-mode -- of which Emacs
itself is now a derivative, and IIRC org-mode is a component of
another separate collective work called "GNU ELPA".

I'm asking for clarification about how and where the lines are drawn.
I would be perfectly happy if that line is drawn so that org-mode is
part of Emacs: that doesn't stop XEmacs from distributing it, and
that's obviously what org-mode developers want.  I just don't see how
to draw the line between org-mode and my init file without using
concepts that don't seem to be reflected in law.

Note that your interpretation is also at variance with the FSF's
statements and behavior regarding dynamic linking.  The FSF does not
believe that "distribution with" is required under copyright law to
establish a work composed of several components.

 > Your initfile would be "an original work of authorship," not a
 > "change to Emacs"--even though it's not usable or useful without an
 > Emacs to run it on.

In copyright, all changes are original works of authorship.  The fact
that they may require composition with another work to be useful
doesn't change that.  AFAICS there is no concept of "change" in US
copyright law (or Japanese, for that matter).  Works are *fixed* in a
medium and then *copied*.  "Modified version" is an abbreviation for
"some parts of a work were copied into another work which is not
identical to the work being copied", as far as I can see.  It does not
establish a relationship of "modifications to an existing work"
between the original parts of the derived work and the copied work,
when those original parts are considered separately.

In short, legally a derived work contains a *copy of*, but not
*changes to*, another work.

 > Jambunathan modified a repository of software the authors of which
 > (himself included) assigned their copyright to the FSF, and,

Irrelevant, unless all copyrights held by the FSF are part of Emacs.

 > specifically, he worked on files which identified themselves as a
 > "part of GNU Emacs."

I'm aware that's probably true.  That's why I specified a
counterfactual assuming that he received and changed files that had
not yet been accepted into the Emacs fold, and identified themselves
as part of a separate work.  I'm not trying to defend Jambunathan's
behavior, I want to know just how much of my oeuvre the FSF thinks
I've signed away.

 > Which the files in Org do.  Everything in Org's core contains "This
 > file is a part of GNU Emacs."

"Core" and does now, yes.  The point of my hypothetical is that the
files Jambunathan started from, and committed, may not have.  Those
bags of bits therefore may not have been part of Emacs at the time in
copyright law, and I don't see how to establish that he "modified
Emacs" under those (possibly counterfactual) conditions.  Especially
considering that AIUI in copyright law works can be "fixed" and
"copied", but there is no formal concept of modification, only of
derivation.

I'm not particularly fond of that conclusion in the case in point.  I
don't think what Jambunathan proposes to do serves anyone or any
project well, least of all himself.  (And I've told him that,
privately.)  "You can't do that, legally" would be the simplest
resolution.  But simple resolutions in law often have unpleasant
consequences, and I would like to know about those consequences.

It's possible that the assignment contract creates a new concept of
"work", different from that of copyright law.  But if so, I have a
rather different concept of "what Emacs is" from the one which claims
files in the contrib directory of the org-mode repository as "part of
Emacs" (even though the files themselves may claim to be such a part),
and I wonder how a court would deal with that difference of opinion.
I suspect it would take my opinion seriously (not necessarily uphold
it, but surely not summarily dismiss it as prima facie untenable).

Aside:

 > My understanding is that he'd already assigned copyright on his
 > work in Org (and his patches elsewhere in Emacs) to the FSF, and
 > now wanted to "withdraw his pleasure" at that assignment--i.e. to
 > withdraw specific things that he'd already committed to Org so that
 > they'd revert to being joint works, their copyright unenforceable
 > (or, rather, not easily enforceable) in the US without his consent.

Of course the FSF cannot enforce copyright on unassigned parts of a
joint work without cooperation of the copyright holder(s), but I think
the premise of individual copyright on joint works being "difficult to
enforce" is false nowadays.  VCS history passes all the tests
necessary for computer records to be admitted in court.

But that's irrelevant to Emacs policy, the policy is what it is, and
as Mr. Fogel points out, today it serves social purposes as well as
legal ones.