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Re: GPL traitor !


From: Alan Mackenzie
Subject: Re: GPL traitor !
Date: Mon, 11 May 2009 19:14:28 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

In gnu.misc.discuss Hyman Rosen <address@hidden> wrote:
> Alan Mackenzie wrote:
>> The issue is what is meant by "contains".

> You have to take the allegedly infringing work and show that significant
> parts of the infringed work are present in it. You have to do that well
> enough to convince the people who will be trying the case.

Then the issue becomes what is meant by "present".

>> The fact that it calls certain functions is likely to indicate that
> > the code is derived from the program containing those functions

> That's generally false - any program written to the specifications of
> an API contains many function calls to that API, but is not bound by
> the copyrights of the code underlying the API.

You reckon?  That program can only be written by copying the
(copyrighted) API source code, directly or indirectly, into the programs
code. 

>> since it will be using the internal data structures of the original

> "The only way to interoperate" is a defense against copyright violation.
> If it is necessary to incorporate data structures in order to interact
> with an API, then one may do so without needing permission from the rights
> holders of the API.

I'm also not talking about interoperation.  I'm talking about a single
program.  What you have described will apply in certain circumstances
only.

>> The exception is if the functions are designed to be callable from
> > independent source, such as standard library functions like sin, cos

> This just isn't so. You are making up your own ideas of what is and is not
> permitted, and there is no basis in copyright law for your claims.

Am I really?  Are you not?

>> unless, of course, it contains code derived from some other copyright
>> work.

> Again, there is no such concept as "derived from other work" in copyright
> law.

Sorry, a derivative work means one which is derived from pure
nothingness.  My mistake.  ;-)

>> If Bob uses a different compiler from Alice, his binary won't "contain",
> > physically or otherwise, any significant part of hers, even if he fails
> > to change a single line of her source code.

> Binary and source code of a computer program share a single copyright.
> If Bob is copying compiled binaries of Alice's source, he is infringing
> on Alice's single copyright of her program.

Agreed, even though the "only" aspect of Alice's copyrighted work in
Bob's binaries is a highly abstract convoluted transformation,
discernible only with long-winded difficult analysis.

>> Considering binaries isn't helpful, it just leads to confusion.

> Considering source is very easy, but is unhelpful to you. It's very
> easy to determine copyright infringement in source - you simply look
> at it and see if it contains pieces of the allegedly infringed work,
> except insofar as necessary to interoperate with it.

Sorry no, not always.  It's possible, but can be difficult, as in the
scenarios below.  If the infringement consists of a translation to a
different language, it will require painstaking analysis to detect.

> > You'll probably agree with me that Bob's binary is still derived
> > from Alice's source.

> Compiled binaries and other such mechanically transformed versions
> all share a single copyright. There is no "derived from" here - they
> are all the same work.

Fair enough.  I'm not quibbling with such pedanticness - in essence,
doing this requires the permission of the copyright holder, regardless
of whether the result is the same work or a different one.

>> Now suppose instead that Bob manually changes Alice's source, say by
>> changing the identifier names in the data structures, or by translating
>> it manually into Haskell, then modifying this source and compiling it.
>> This is the case where you've asserted (wrongly) that Bob's binary is
>> independent of Alice's copyright.  (Alice here has written GCC, and Bob
>> writes a code generator for a new chip).

> You are conflating two separate things. The first is clear copyright
> violation - Bob is preparing a derivative work of Alice's program, and
> may not do so without Alice's permission.

Agreed.

> Given permission, both Bob and Alice hold copyright to the resulting
> work. However, it is possible to write a code generator for a new chip
> without needing to begin with existing source code, ....

False.  Bob will have to begin with the existing code (whether source
or object is irrelevant, you have said), since he requires the .h file
(or equivalent) which describes the format of the intermediate code.  He
must either use this file (for which he needs a license) or extract it
from the existing work by skullduggery as described 4 paragraphs above.
His resulting code generator will recognisibly contain the original source,
just like the novel translated into Russian contains the original English.

> ..., and doing that requires no permission from the rights holders of
> the compiler into which it will fit.

Wrong, since he must copy, in some fashion, the existing code into his
new bit.

>> Even in literary works, there's no requirement for "physical" inclusion.
>> If Bob translates Alice's novel from English to Russian, renaming London
>> to Moscow, Bob to Ivan, and Alice to Natalia, not a single word of
>> Alice's original will survive the translation.  Yet the translated novel
>> is derived from the original and needs a copyright license.

> You have described a derivative work. There is no question that this
> requires permission from the original author. That's because the derivative
> work is a significant auctorial transformation of the original work.

Glad we agree on that.

> Using
> a library in a program is not a significant auctorial transformation of
> that library. The resulting program is not a derivative work of the library.
> The only copyright issue is if the resulting binary contains a physical
> copy of the library.

That's not the scenario.  That would require a license from the copyright
holder of the library.  Using the term "library" here is confusing,
because that word has conotations of independence from its user.

The scenario is that of Bob, directly or indirectly, copying
intermediate.h into his new bit of program.

-- 
Alan Mackenzie (Nuremberg, Germany).



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