Re: Use of GPL'd code with proprietary programs

[Isaac]

On Sun, 18 Jul 2004 05:28:12 -0000, <telford@xenon.triode.net.au> 
<telford@xenon.triode.net.au> wrote:
> In gnu.misc.discuss Isaac <isaac@latveria.castledoom.org> wrote:
> 
>> I agree with you.  But the need to push is a problem of the FSFs own
>> making.
> 
> No, for negotiating purposes they must push at exactly as hard as their
> opponents are pushing.

That is your theory anyway. 

My theory is that the FSF is forced to use their definition of derivative
works because without it the provisions of the GPL that prevent exploiting
code without distributing source code become toothless.  People who want
to hoard their own code could compile any GPL covered code into a library
and then call it without being bound by the GPL.

The typical closed source vendor does not need to do the same thing because
they maintain control over what users do.  GPL copyright holders have
disclaimed such limits.

>> By using a license the removes the possibility of contributory
>> infringement claims because it allows the users to run the software
>> without limitations, the FSF is limited to asking the court to find
>> direct infringement where most likely none exists.
> 
> This is true, but it is still better for the FSF to hold the fear of a
> potential court case in the air in order to curb GPL misuse.

It would be even better if the theory used to curb misuse was one
that was known to be work.

>>> court then the judge would be left with a difficult decision:
>>> a ruling in favour of the FSF would strengthen GPL and become a
>>> confidence boost for the entire "Free Software" community,
>>> on the other hand, a ruling against the GPL would be a precedent for
>>> limiting the definition of derivative work and hence would weaken
>>> a lot of other copyright claims (e.g. Microsoft's MFC libraries
>>> or SCO's "application binary interface" claims or Sony's claim to own
>>> the right to license all Playstation software regardless of authorship).
> 
>> Haven't the Sonys of the world already lost their part of this fight
>> to the Connectixes of the world?
> 
> I wasn't familiar with Sony vs Connectix. Now I look at it, seems that
> the battle was mostly faught on patent issues and that Connectix has only
> achieved a partial victory. Still, it is a good step towards courts realising
> that IP law should not be allowed to curb product compatibility. Has a similar
> case been fought using copyright law?

I think you need to take a closer look at Sony v. Connectix.  At the
time of it's appeal to the Ninth circuit there were no patent issues
being litigated.  Sony was the total and complete loser with respect
to its copyright and trademark infringement claims.

The main game cases are Sega v. Accolade, Nintendo v. Atari, and
Sony v. Connectix.   I'd highly recomend looking at the Sega case.

> Anyhow, I was NOT thinking along the lines of being able to run playstation
> games on an emulator... I was talking about being able to WRITE your own
> playstation games and run them on an unchipped playstation. Sony is still

Maybe that is your interest, but the topic at hand was whether or not
the court would allow an interpretation of the "based on" that would result 
in a companies like Sony losing.  I'm not sure why Sony v. Connectix is not
a good illustration that a Court will find that calling someone else's code
does not create a derivative work even if that decision hurts Sony.

Sega v. Accolade happens to be a case concerning a vendor manufacturing
game cartridges for Sega game consoles.  Is that closer to what you are
interested in? 

> very successful at controlling the market for the PS2,  they do it by
> using a boot sequence on the DVD that is encrypted (so you can't write your
> own). The boot sequence installs a tiny kernel (a bit like VMware) and throws
> the hardware into a sort of virtual machine mode for the real game to operate.
> This means that the programmer never has true access to the machine hardware
> and it also means that if you want to release your own game you must buy a
> license from Sony for that boot sequence and VM code or else your program
> will not run.
> 
> Thus, they use copyright law to prevent anyone marketing compatible PS2 games
> without paying their "Sony tax", in effect they control the entire PS2
> game development market.

I suspect that if Sony wants this to work it probably need to invoke the
DMCA's provisions on anti-circumvention.  This law did not exist at the of
the cases I cited.  I don't think we can suggest that the FSF's stance is
motivated by the DMCA without violating causality.

Isaac