what defines source code in (A)GPL ?

Sat Jul 10 17:16:48 UTC 2010

Hi, I have one more question: 

If I release Innovation under Software to product Software+ as OS, then anybody (including our rivals) will be able to use Software+. 
Ok, but can rivals copy the function that implements the Innovation into their own software (because they have no use for another company's Software)? 
I.e. does AGPL make a distinction between Code and the Idea itself ?

best, Harri

ps. Some notes on earlier discussion below, attempting to position Innovation in AGPL terms.

> From: chuck at codefab.com
> Subject: Re: what defines source code in (A)GPL ?
> Date: Wed, 7 Jul 2010 12:09:27 -0700
> CC: license-discuss at opensource.org
> To: harriers at windowslive.com
> 
> Hi--
> 
> [ ...email formatting recovered... ]
> On Jul 7, 2010, at 11:31 AM, Harri Saarikoski wrote:
> >> The exact phrase "use the GPL software" does not appear in the AGPL, so it's hard to know what you are asking about, but I suspect this is the relevant section:
> >> 
> >> "10. Automatic Licensing of Downstream Recipients.
> >> 
> >> Each time you convey a covered work, the recipient automatically receives a license from the original licensors, to run, modify and propagate that work, subject to this License. You are not responsible for enforcing compliance by third parties with this License.
> > 
> > This section and your point thereto seems to address the earlier, already covered question.  Naturally, if you tweak the code and sell it, you are subject to copyleft as specified in GPL.
> 
> You don't have to sell anything, or modify the original program, for the GPL/AGPL terms to apply to derivative works.  If you propagate the program, a modified version of the program, or a work 'based on' the program, the terms of the GPL/AGPL will apply.
> 
> > We are ok with that, as well as with any fundamentalism attached to enforcing open source licenses. However, that is not the current question: I have studied the AGPL, religiously I might add.
> 
> Software licenses are an intersection of legal terminology, copyright & contract law, and a bit of computer science-- religion doesn't really enter into it.

Meant 'rigorously'.

> 
> > I haven't found a section that specifies if copyleft is to be enforced when the modification of the AGPL covered work has not required a tweak of its source code, i.e. no new methods, not even a slightest tweak of existing methods.  As it is objectively only a method of using the AGPL covered software, the only source code required to be distributed is the AGPL covered software, not my method of using the methods in that library.
> 
> Try re-reading section 0, "Definitions".
> 
> For the sake of example, if you were to compile a program using your code which calls GPL/AGPL code, and release that to the outside world, then the terms of the AGPL would apply to that work as a whole, including the part you wrote-- you would be obliged to provide the source code for everything used to build that executable (except for "System Libraries" and such noted in section 1), you would be conveying a "non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version....", and so forth.
> 
> On the other hand, if you create a truly independent work which stands alone, then merely including it with GPL/AGPL licensed work(s) does not form a derivative work, and the terms of the GPL/AGPL would not apply to that independent work-- see the discussion of "aggregate" in section 5.

Ok, these are probably the key terms in AGPL that apply in this case: 

- derivative or non-derivative: It is clear, under any objective scrutiny, that the Innovation is a *non-derivative work*, if we define it as a standalone application or a non-integral part of any applicable Software (be it GPL covered, proprietary or freeware). It works on the *data* itself. 

So even if it is in "0.Definitions" section a covered work, the fact that is a non-derivative (separable) part, exempts the Innovation from GPL (right?). 

- modified or not: I'm also reading this exemption: "To 'modify' a work means to copy 
from or adapt all or part of the 
work
in a fashion requiring copyright permission, other than the making of
 an
exact copy." It is precisely making an exact copy, therefore it is 
not defined as 'modification', which prompts an exemption, because "The resulting work is called a 'modified version' of the
earlier work or a work 'based on' the earlier work. A 'covered work' 
means either the unmodified Program or a work based
on the Program" ?

- aggregate: "A compilation of a covered work with other separate and independent
works, which are not by their nature extensions of the covered work,
and which are not combined with it such as to form a larger program,
in or on a volume of a storage or distribution medium, is called an
"aggregate"... Inclusion of a covered work
in an aggregate does not cause this License to apply to the other
parts of the aggregate." The nature of the Innovation is not an extension of the covered work, inasmuch that it does not require any source extensions. 

The Innovation can be implemented in the GPL covered Software in a way that it is an *application* in much the same way as a database application that 'uses' 
mysql (GPL) is an application. Are all mysql developers required to copyleft the content of their application ? This is in fact an accurate analogy: my Innovation as placed in the AGPL Software framework is more equivalent to e.g. doing something with an existing application (e.g. mysql-admin GUI) that greatly benefits the user community (without modifying its source code), and then selling that 'expertise'. If a motor world analogy was allowed, Innovation is a turbo charger into existing cars.

Let me also reiterate that I am in full agreement with the copyright holders of the Software to jointly sell and protect the Innovation. This is what I meant by dual/tri-licensing: I personally as a non-copyright holder can only copyleft (if I am still liable after the above considerations ?). It is solely our joint concern that their copyright for Software does NOT become violated by a rival company. So maybe I should have been more specific that it is WE who are asking. Our (joint) worst case scenario is that when we make the product public (free and under AGPL), it is in the keen interest of companies like MS or IBM to copy the Innovation from our distribution. I assume AGPL allows them to do that, so they make that part of their own products, without any part in my development that took me six years to complete. What likely happens then is that their resources to market and sell n^m fold ours (my company's and the copyright holder's). 

In my view, world will not change in this particular case in the direction open source community would want, to further Innovations by smaller companies because big ones, with their big marketing machinery stands at an advantageous position to make money with the Innovation. 

best, Harri

> 
> If that is not sufficiently clear, then you should probably seek legal advice from a person qualified to provide it, ie, your lawyer....
> 
> Regards,
> -- 
> -Chuck
> 

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