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Re: SFLC is SOL


From: Rex Ballard
Subject: Re: SFLC is SOL
Date: Tue, 04 May 2010 16:14:13 -0000
User-agent: G2/1.0

On Apr 12, 8:36 pm, "amicus_curious" <address@hidden> wrote:
> "Hadron" <address@hidden> wrote in message
>
> news:address@hidden
>
>
>
> > Rex Ballard <address@hidden> writes:
>
> >> On Mar 15, 6:03 pm, RJack <address@hidden> wrote:
> >>> Rex Ballard wrote:
> >>> > And before ANY of that goes to a jury, both sides have to show their
> >>> >  cards to the Judge and to each other.
>
> >>> Before ANY of this even goes to the discovery stage, the defendants
> >>> will file FRCP Rule 12 Motions to Dismiss challenging the legal
> >>> enforceability of the GPL contract. Only *after* determining the
> >>> enforceability of the GPL will the court be in a position to determine
> >>> what is relevant in its discovery orders. The enforceability of the
> >>> GPL is a matter of law and is determined by the trier of law (the judge
> >>> not the jury) hence the repeated language "the license speaks for
> >>> itself". One thing to watch in the defendant Answers is the language of
> >>> their defenses.
>
> >> The question at issue is whether copyright licenses are valid.
>
> > Answer : yes they are. And no amount of whining and freetardery will
> > change that.
>
> Things are not that simple, else, why have lawyers?  If you, say, take a
> photograph of the Toledo skyline at nightfall and publish the image, you own
> the copyright to that image and no one can use it without your permission.
> But if someone else borrows your camera and goes to the same spot and takes
> an identical photograph, they can use their photo as they wish.  Copyright
> essentially pertains to "and expression, fixed in a media" as the act reads.
> Now consider that the binary form of a software program is the image.  Then
> the computer used to compile the software binary is, in effect, the camera
> and the source code is the directions on where to stand and where to point
> the camera.  Is that source code protected as a unique expression, too?  I
> don't think that question has been answered in court as yet.

Both the statute of 1976 and precedent has already established that
the code compiled from source is also protected.  The only time a
compiler could alter the copyright is if the compiler generates or
include copyrighted code from other sources.  The Bison compiler is a
good example.  I argued with Richard Stallman that if proprietary code
was compiled under Bison, then moving the proprietary code into GNU
license would be stealing the code.  Richard responded, reminding me
that if the owner of the proprietary code did not want to publish his
code under GPL, they should use another compiler such as YACC.

Eventually, the problem was solved when the authors of YACC published
a version of YACC under GPL which did not put the code generated by
the program under GPL.

Linux has consistently taken a very pragmatic approach to blending
both GPL and proprietary software, using LGPL applications and shared
libraries to isolate proprietary compiled code from public license
code.

> If you go back to the first principles and see where the copyright is to
> protect the artist's expression and reason that is mainly due to protecting
> the artist's income from his work,

Actually, according to the constitution, and the statute, the aim was
to promote the free exchange of information and ideas.  There is no
requirement that an artist be compensated in cash.  The artist or
author is providing consideration in the form of the copyrighted work
- and the contract is the license agreement, in which the copyright
owner may stipulate the terms and conditions of use.

The same work can be published under different licenses.

For example, a digital video could be licensed for home use when it's
sold in stores.
It could be licensed for theater exhibition when it's loaned to
theaters.
It could be licensed for broadcast when a copy is loaned or given to a
broadcaster.
A bar has to purchase a different license for ESPN than a home viewer.

Copyright law governs not only duplication of the media, but also
performances, or play-backs.
Technically, even a play-back is a copy because the content must be
copied from the storage device to the memory and registers of the
playback device.  This is why it's illegal to interfere with software
that records the performance history of a media player.  The Digital
Millinium Copyright act more clearly restricts alterations to play-
back devices or duplication technology - making it illegal to remove
information that helps track duplication and performance as well as
detecting piracy.  The DMCA also prevents users of media from creating
software which encourages illegal copying - this is why DVD-CSS driver
for Linux was blocked in the United States.

This was why the copyright act of 1976 was passed.

> the problem gets even more cloudy when
> there is no financial benefit accruing to the artist in the open source
> world.

Actually, the artist or author is the one who is providing the
consideration.  What he is "selling" is a specific set of license
terms.  Just because you buy a CD at Sam Goody's doesn't mean that you
can then put that CD on your web site and let everybody download it
for free.  Your license stipulates home use or personal use only.

>  No damage, no compensation in the contracts world, hence the
> insistence that the GPL is not a contract.

Actually, the GPL is a contract, because FSF has provided the item of
value, and accepting the item of value binds the licensee to the terms
of the license.

If you don't like the terms of the Microsoft EULA or OEMLA - don't
install it.  Replace it with a License you do like.
Legally, even if you didn't pay a dime for the license - out of your
own pocket - you would still be bound to the terms of the Microsoft
License agreements.

The same is true with GNU licenses or any other Open Source license.
The artist, author, or publisher is publishing his works under the
terms of a license agreement.

Different license agreements, even different Open Source Licenses vary
in their terms, but the terms are legally binding.  If Richard
Stallman decided that he wanted a picture of the bearded GNU on every
package and display that was equal in size to any logo of any other
competitor, then you would have to either put on the picture, or stop
using the software.  In this case, Richard Stallman's only requirement
is that you provide a link to a public web site showing the location
of the GPL and LGPL portions of the code.

You don't have to publish your drivers.
You don't have to publish your plug-ins
You don't have to publish applications or servers that call glibc as a
shared library.

Several have contested these license terms, and the rules of law are
usually established during the preliminary rulings.

Any of these respondents could hope for a judge who will see things
differently.  But unless you have a pretty strong case that the author
or publisher has actually put the source code in public domain - the
Judge is probably going to rule that the material is copyrighted and
the plaintiff is therefore entitled to enforce the terms of a
copyright license.

To get past the preliminary ruling, the plaintiff would have to pretty
much find a smoking gun - that the precise code being contested - was
published under BOTH the GPL AND either a less restrictive license,
such as BSD, or was put into public domain by the author.

Even this could be a problem, because if there is even ONE enhancement
that was ONLY published under GPL, and the contested software contains
the GPL enhancement, then the license would still be valid.

Normally, these trials rarely go beyond the preliminary rulings,
because these rulings help to determine the negotiating leverage of
both parties.  When the judge rules against you on key issues, you
tend to be more willing to accept the other party's terms.

Ironically, all the licensees would have to do is comply with the
terms of the license.  If they comply early in the game, SFLC is
likely to request dismissal without prejudice - with each side paying
their own legal costs.  If they try to drag it out and push for lots
of disclosure - then there is a likelihood that as more rulings and
findings go against the defendent, the defendent may end up having to
pay legal fees of the plaintiff.



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