On Sat, Jan 22, 2000, Nate Puri <natepuri[_at_]office.ompages.com> wrote:
>
> On Fri, Jan 21, 2000, Karsten M. Self <kmself[_at_]ix.netcom.com> wrote:
> >
> > On Thu, Jan 20, 2000, Nate Puri <natepuri[_at_]office.ompages.com> wrote:
> > >
> > > What is uncertain is the manners in which copyright will render one or
> > > more provisions of the GPL type licenses moot.
> >
> > Could you expand on this?
> >
> > IANAL, this is not legal advice.
>
> IANAL, but I am studying for the bar, and copyright is not on it so I
> won't get too deep into this.
I'd strongly recommend a close read of 17 USC 101 and following, and the GNU General Public License, as well as several references I've listed previously at CNI Copyright.
> Consider the street name of the GPL, 'copyleft.' That sums it up.
> It's an attempt to circumvent traditional copyright.
The GPL is a legal instrument which takes the usual use of copyright -- securing exclusive rights to authors -- and turns it inside out. It does so entirely within the mechanisms of copyright law in a manner I find similar to judo (a lawyer friend of mine refers to it as "ju-jitsu IP"). GPL doesn't circumvent copyright, it applies it. Specifically, and with particular intent.
Your argument is akin to saying that a public park is a circumvention of real estate property laws. In an analogous same sense that a park defines a geographical area and provides access while restricting certain despoiling activities, free software defines an intellectual property via copyright, and provides public access while restricting certain despoiling activities (varying from license to license according to authors' intents).
"Copyleft" is actually a term Stallman invented to describe a class of licenses, of which the GPL is one instance. It's a license which defines the "park" above.
> Copyright is derived from Art. 1 of the Constitution and traditional
> common law. It is like a universal BSD license that allows you a
> monopoly on the subject matter of your authorship. This is a sin
> to Stallmanites, and they drafted the GPL to attempt to prevent this
> kind of personal power.
The GPL was drafted specifically to promote the growth and extension of software meeting the definition of "free" as given by Stallman, and contains a persistent (some say viral) hook to this end. The GPL does so by exercising specific personal powers granted through copyright law. The BSD (and X) license doesn't contain the hook, but has different aims -- broad acceptance of code, little concern for proprietary extensions or variants, and attribution of original authorship. In many ways, following in the established academic research tradition.
> It is unclear in a dispute between an author of a patch to source code
> and the author of the original source code what the courts would do
> with the patch and or the patched code. Is it derivative and hence a
> new work owned by the patch author or is it restricted by the GPL and
> remains some kind of quasi public domain / IP of original owner?
My reading is that the GPL operates entirely within the scope of copyright in defining what constitutes "a work". While a patch might not be a derivative work (a patch is a "diff", or difference between one work an another) if it contains no work from the original, the application of a patch to the original work would in many cases create a derivative work. This enters into areas of contributory infringement, covered under US copyright law for the patch distributor, and direct infringement for those applying the patch. Patch-distributed software is possible, but tends to be of limited utility and acceptance. Your attribution of ownership of derivative works is false.
> I can't answer this, but my initial feeling is that the courts will
> not expand or change copyright for the GPL. The most courts would
> do is hold that it is a contract of which only certain provisions
> withstand the illegality defense to contract. Specific performance
> of all the provisions will not happen to the extent courts find any
> provisions in conflict with existing copyright law.
In over fifteen years of existence, the GPL has never been successfully legally challenged. If you'll review recent CNI postings, you'll find that it is usually relatively easy to persuade a party to conform to its terms. I've met with IP attorneys from a number of large technology and legal firms. The general consensus is that the GPL is a solid legal instrument. I've never hear a credible weakness posed by someone educated in IP law, though there are some loopholes of use and distribution which the current version of the GPL does not address.
> I think the idea of "open source" needs a lot of treatment by lawyers.
A point of agreement. <g>
> There should be a subset of copyright law created.
Not clear whether you mean legislation (I disagree) or practice (I agree, to an extent, and it's already here).
> And the concepts should be fleshed out. It should not be a mere
> litany of licenses, but all the licenses should be evaluated for
> unique concepts relating to software so that lawyers can tailor
> licenses for the specific needs of the author.
With a strong caution that a proliferation of licenses works against free software in that many licenses preclude relicensing under other terms. In particular the GPL, which covers a large portion of code.
> There is no 'one-size-fits-all' license. Developers may have
> thought that there was, but then all these license iterations
> started to emerge.
Agreed, but there's a fairly clear emerging typology.
> Now there are two factions: 1) GPL devotees, 2) everyone else.
No, that's not it.
> This is a messy new area, and there really should be a law review on
> the whole topic.
Agreed.
> If someone cares to pay my bills for the next three months, I'll write
> it. ;).
Well, you've got $0.02 from me.
--
Karsten M. Self (kmself[_at_]ix.netcom.com)
What part of "Gestalt" don't you understand?
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Received on Wed Jan 26 2000 - 19:36:25 GMT
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