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Re: GPL traitor !


From: Alan Mackenzie
Subject: Re: GPL traitor !
Date: Thu, 14 May 2009 17:31:06 +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:
>> This single "program" you're talking about, a new code generator for GCC,
>> isn't a program, any more than a video card is a computer.

> That's false. The definition of a computer program in copyright law is
>     <http://www.copyright.gov/title17/circ92.pdf>
>     A ?computer program? is a set of statements or instructions to be
>     used directly or indirectly in a computer in order to bring about
>     a certain result.
> Notice the use of the word "indirectly".

Note also "to bring about a certain result".  The new code generator
can't, of itself, bring about a certain result, therefore isn't a
program.  That definition is the legal formulation of "begin a coherent
whole".  

Look, you can keep twisting these legal words into artificial,
sophistical, pedantic interpretations as long as you like.  Judges won't
buy it.

>> to prevent a firm such as MS

> Preventing a firm such as MS from doing something is no different than
> preventing a person named RMS from doing something. The same law applies
> to both.

Except, in practice, hell will freeze over before you need to stop RMS
doing that thing.

>> It can have no relevance whatsoever to GPL'd code

> Of course it does - it indicates that copyright of one work shall not
> be used to prevent another work from interoperating with it.

Read it through again, slowly and carefully, Hyman.  That whole wodge
of text was solely about begin allowed to "circumvent a technical
measure", and nothing else.  It has no bearing on circumstances not
involving such circumvention.  Really.  Please read it carefully.
Please.

>> it would permit any hacker to modify any program any way he wished
> > without regard to its copyright, merely by saying his modification
> > is a "separate program" and he's "maintaining compatibility" with
> > the original.  That would be absurd.

> Modifying an existing program is specifically legal:
>     <http://www.copyright.gov/title17/circ92.pdf> Page 69
>     ? 117 ? Limitations on exclusive rights: Computer programs
>     (a) Making of Additional Copy or Adaptation by Owner of Copy.?
>     Notwithstanding the provisions of section 106, it is not an
>     infringement for the owner of a copy of a computer program to
>     make or authorize the making of another copy or adaptation of
>     that computer program provided:
>      (1) that such a new copy or adaptation is created as an
>      essential step in the utilization of the computer program in
>      conjunction with a machine and that it is used in no other
>      manner
> And courts have given extremely wide latitude to the definition
> of "essential step in the utilization", allowing any kind of
> enhancement.

No.  Modifying an existing program is legal only for the specific
purpose mentioned, namely to get the program to run.  If the adaptation
changed the program's functionality, it would not be an "essential step
in the utilization ....".

> What is absurd is your failure to distinguish between copying and
> new work. A modified existing program may not be copied except as
> defined above or with permission. A new work which interoperates
> with an existing one needs no permission from the copyright holder
> of the existing work.

Absolutely false.  I have explicitly distinguished between copying an
old work and creating a new one.  You are [deliberately?] fudging the
issue of what constitutes a new work, and are distorting my posts to
avoid confronting the issue.

A new work here means a program (as in the definition you quoted).  You
cannot legitimately construe a modification to an existing program as a
"new work" merely by building it as a separate library.  Think about it,
the notion of copyright would become absurd if dynamic vs. static linking
made any difference.  The "new work" isn't one unless it "can achieve a
certain result" in its own right.

>> OK, then, artificially refraining from putting the new code into the old
>> for the sole purpose of maintaining it's really a separate program.

> There is nothing artificial about it. It really and truly is a
> separate program, as defined by law.

It is artificial in the literal sense of the word.  It is an "artifice",
a trick, a deception, something unnatural; it is something which makes no
sense from the point of view of software construction.

>> if some smart-alec hacker artificially keeps his enhancements separate
>> from the existing program, you reckon the judge won't notice?

> There is nothing to notice; such separate enhancements are perfectly legal.
> You seem to be unaware that this specific procedure has a long history;
> programs which were open source but did not permit modified versions to be
> distributed have been accompanied by patch files which are intended to be
> applied by the recipient to produce a modified version. This is legal under
> the adaptation law cited above, unless the patches themselves contain copies
> of significant portions of the copyrighted work.

That is a complete non-sequitur, having no bearing whatsoever on the
discussion, instead introducing new, unconnected scenarios.

-- 
Alan Mackenzie (Nuremberg, Germany).



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