Copyright in contracts/licenses (was: Re: [Approval request] CMGPL licence)

[Karsten M. Self]

on Thu, Nov 08, 2001 at 10:17:14AM -0800, Brian Behlendorf (brian at collab.net) wrote:
> On Wed, 7 Nov 2001, Karsten M. Self wrote:
> > on Wed, Nov 07, 2001 at 03:08:08PM -0500, Russell Nelson (nelson at crynwr.com) wrote:
> > >
> > > For better or worse, the GPL is a document copyrighted by the Free
> > > Software Foundation and they have not granted permission to make
> > > derivative works.
> >
> > I have my own doubts regarding this statment.
> >
> > Legal contracts are, in one analysis, functional documents, and as such,
> > the language that exists, if it's functional, or if the functional
> > characteristics cannot be divorced from the expressive mode, would
> > likely not be covered by copyright.
> 
> Then why is source code covered by copyright?  Is source code not
> "functional" in the same way legal contracts are?  Aren't legal
> contracts just source code for the machine we call society?

Functional aspects of source code are not addressed by copyright.  If
the effects of software cannot be produced except by literal duplication
of expression, then the expression isn't covered by copyright.

The _advantage_ of copyright is that the sheer bulk of code in any
significant program, its fragility, the costs of independent
development, and the protection of copyright offered against duplication
of nonfunctional elements of expression, mean that wholesale duplication
of code is both largely necessary to cheaply duplicate functionality,
and is an exclusive right covered by copyright.

I'm not sure of the standing of legal documents, which is why I'm asking
the question.  Part of their functionality is the very act of their
being presented, published, and/or read in various contexts.  There are
similar questions regarding materials presented in the course of a trial
or legal case, with the general concensus appearing to be that such use
of material does not release it to the public domain, though it may
create certain rights of publicity or fair use claims under the cover of
newsworthyness.

Peace.

-- 
Karsten M. Self <kmself at ix.netcom.com>       http://kmself.home.netcom.com/
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