[License-discuss] GPL and proprietary WebAPIs

[Chris Travers]

On Mon, Dec 26, 2011 at 9:46 AM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting Clark C. Evans (cce at clarkevans.com):
>
>> What was also on my mind was an informal side chat
>> with an attorney on the stack overflow question [1].
>> I was referred to the GNU FAQ, especially the answer
>> for plug-ins [2] where the applicability of the copyleft
>> "depends on how the program invokes its plug-ins" and
>> aggregation [3] where it says "sockets...  are normally
>> used between two separate programs".  This attorney
>> said the specific details of the case were necessary
>> to give any advice, but after my insistence, commented
>> that the community consensus is likely correct.
>
> OK, thanks for clarifying.  There are several claims in FSF's GPL FAQ
> that are rather infamously misleading and doubtful, that being the most
> notorious one.  When one reads caselaw clarifying the concept of
> derivative work, it becomes obvious that the claim stated there is
> simply incorrect.
>
> You will, I suspect, also come to the view that no method of software
> intercommunication is a magic talisman.  One creative work is derivative
> of the other, or is not, as a result of a judge's application of
> standard conceptual criteria used in copyright cases.
>
> You will find scant 100% relevant caselaw, however.  A few examples of
> what you will find:
>
> o  2010 suit against Westinghouse Digital Electronics (I believe,
>   settled on plaintiff's terms)
> o  2010? suits against Best Buy, Samsung Electronics America, and JVC
>   Americas (I believe, settled on plaintiff's terms)
> o  2009 suit against Edu4, Paris Court of Appeals
>   (adjudicated for plaintiff)
> o  2008 suit against AVM Computersysteme Vertriebs GmbH and Cybits AG
>   (adjudicated for plaintiff)
> o  2008 suit 'Welte vs. Skype Technologies SA' in a German court
>   (adjudicated for plaintiff)
> o  2007 suits against Xterasys and High-Gain Antennas (probably settled,
>   not adjudicated)
> o  2007 suits against Monsoon Multimedia (settled, not adjudicated)
> o  2006 suit against D-Link Germany GmbH
> o  2005 suit against Fortinet UK Ltd. in Munich district court
>   (preliminary injunction upheld)
> o  2004 suit against Sitecom Deutschland GmbH in Munich district court
>   (preliminary injunction upheld)
> o  2001 suit against Dlink Deutschland GmbH in a Frankfurt court
>   (adjudicated for plaintiff)


> None of these have directly involved the sort of technological shim
> workaround you are curious about, so you are logically reduced to
> predicting how a judge would rule based on copyright cases and your
> understanding of derivative works generally.  Clue:  Judges are rather
> likely to ignore handwaves about magic-talisman technology, and to apply
> conceptual tests from copyright caselaw to determine whether the
> allegedly infringing work is derivative or not.
>
> And, to the extent there is doubt, and that the probabilities will
> depend on the specific facts of cases, sorry, there's simply doubt.
>
>
>> Unfortunately, this doesn't give me enough guidance on
>> the applicability of copyleft; specifically with my
>> 3-work scenario where someone uses a shim/adapter to
>> include proprietary functionality via a WebAPI.  I keep
>> asking this in this public forum since it matters quite
>> a bit to the effectiveness of the GPL.
>
> What you really should be doing -- to understand the underlying law --
> is studying what leads judges to believe that one work is derivative of
> another.   (That of course does not tell you what is 'acceptable to the
> community[1]', an entirely different question.)  You'll also want to study
> contract law, which is often and perhaps always relevant alongside
> copyright law.

Precisely.  As far as US copyright law, I would suggest starting the
Apple v. Microsoft (1994) and Gates Rubber v. Bando....
>
>> ...does the GPLv3 actually prevent...
>
> GPLv3 doesn't prevent a blessed thing.
>
> Copyright law and contract law make particular actions concerning
> software and other creative works tortious, making it possible for the
> offended party to get remedies in law and (maybe) in equity.
>
>
> [1] I don't see what 'the community' has to do with the matter at hand.
> If there's an alleged tort, someone with standing either sues or not.
> If he/she sues, the case is well argued or not.  Plaintiff prevails or
> not -- and 'the community' isn't particularly relevant.

Best Wishes,
Chris Travers