[License-discuss] License incompatibility (was Re: Open source license chooser choosealicense.com

Wed Sep 11 10:12:03 UTC 2013

Dear Till
Thank you for this - excellent - analysis.
You wrote:

The only hint you may find is Article 6 which says that decompilation is
allowed under certain circumstances to "achieve the interoperability of an
independently created computer program with other programs".

Written in 1991, the Directive considered decompilation only, based on the
assumption that source code was not communicated to the licensee. The case
of free/open source software looks different because the licensee has
legitimately an access to the source code (no decompilation is needed).
However, this is indeed without importance in my understanding: the idea is
that the legitimate licensee of a software program (received as object code
only or as object + source in the case of FOSS) has the right to inspect
and reuse this code with the purpose “to achieve interoperability”

There is a definition of interoperability in recital 10: 'The parts of the
program
which provide for such interconnection and interaction between elements of
software and hardware are generally known as "interfaces". This functional
interconnection and interaction is generally known as "interoperability";
such interoperability can be defined as the ability to exchange information
and mutually to use the information which has been exchanged. '

Therefore, my understanding of the directive is that software, that is
independently created and exchanges information with other software through
an interface, is independent software and not a derivative work.

This is also my own understanding. But it means that linking software for
interoperability (= for exchanging information) makes no derivatives and
that the way of linking (statically producing a single binary or dynamic at
runtime) is just a technical modality without substantial importance
regarding copyright.

There is another hint in section 3 of Article 6: “the provisions of this
Article may not be interpreted in such a way as to allow its application to
be used in a manner which unreasonably prejudices the rightholder's
legitimate interests”.

If some litigation comes (hypothetically) to the Court (note: the right
name is now “Court of Justice of the European Union”) and if I was - by
impossible chance - involved as a lawyer, I guess that I would argue that
protecting free software is a legitimate interest and that statically
linking with proprietary software unreasonably prejudices this interest. At
the contrary, linking with FOSS software covered by another “similar”
copyleft licence would not prejudice this interest.   Just my own
understanding of course...

Interesting debate...

Patrice-Emmanuel

2013/9/10 Till Jaeger <jaeger at jbb.de>

> Dear list,
>
> Bradley and Larry have asked me to share my view as a European lawyer on
> the
> question if linking of software components (necessarily) results in a
> "derivative work" as understood by the GPL. In a nutshell, my thoughts are
> the following (a more comprehensive overview can be found at
> http://www.ifross.org/Druckfassung/Ziffer%202.pdf, unfortunately in German
> only):
>
> 1.
> As far as I know there is no relevant case law on the question of what may
> be considered a "derivative work" under European copyright law for
> software.
>
> European software copyright law has been harmonized
> (
> http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:01:EN:HTML
> )
> since 1991.
>
> In my opinion "derivative work" in software law should have a different
> meaning than in other fields of copyright law.
>
> Software is typically interacting with other software, and dependencies
> (e.g. an application running on an operating system) do not necessarily
> mean
> that two components form a derivative work.
>
> 2.
> GPLv3 refers to copyright law ('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') whereas GPLv2 might be interpreted
> in a way that the understanding of "derivative work" is broader. In this
> regard the GPLv2 seems to be a bit contradictory to me. On the one hand it
> defines 'a "work based on the Program"'as  “either the Program or any
> derivative work under copyright law", on the other hand sec. 2 contains a
> more detailed explanation of what the term "derivative work" is supposed to
> mean within the scope of the GPLv2 ("If identifiable sections of that work
> are not derived from the Program, and can be reasonably considered
> independent and separate works in themselves, then this License, and its
> terms, do not apply to those sections when you distribute them as separate
> works."). Apparently, a computer program which is _not_ derived from GPL
> code has nonetheless to be licensed under the GPLv2 when the original GPL
> code and the program are not distributed "as separate works".
>
> If you do not want to ignore that language you have to find a meaningful
> interpretation for this sentence in sec. 2 of the GPLv2. To me, it makes
> sense to understand "distribute them as separate work" as a formal
> criterion, i.e. distributing one binary blob makes it "one work" instead of
> two or more "separate works". Of course, other interpretations are
> possible.
>
> 3.
> I think it is very difficult to predict how the European Court of Justice
> (ECJ) would interpret the phrase "adaptation, arrangement and any other
> alteration of a computer program" as used in Article 4.1 (b) of the
> Directive 2009/24/EC.
>
> The only hint you may find is Article 6 which says that decompilation is
> allowed under certain circumstances to "achieve the interoperability of an
> independently created computer program with other programs". There is a
> definition of interoperability in recital 10: 'The parts of the program
> which provide for such interconnection and interaction between elements of
> software and hardware are generally known as "interfaces". This functional
> interconnection and interaction is generally known as "interoperability";
> such interoperability can be defined as the ability to exchange information
> and mutually to use the information which has been exchanged. '
>
> Therefore, my understanding of the directive is that software, that is
> independently created and exchanges information with other software through
> an interface, is independent software and not a derivative work.
>
> However, it is unclear which kinds of interfaces fall within the scope of
> the directive. The text is from 1991 when Java and other object oriented
> programming was not known at that time (or not as common as it is today).
>
> 4.
> If linked software should be considered a derivative work (under the
> GPLv2 and GPLv3) is truly difficult to judge. With regard to the
> aforementioned criteria I come to the following conclusions:
>
> a)
> From the perspective of copyright law the way how two parts of a program
> interact _technically_ with each other may provide an indication about the
> derivative work question. However, the technical fact by itself that two
> components are linked with each other does not necessarily lead to the
> conclusion that the combination is or is not a derivative work.
>
> b)
> If a developer modifies an existing program and puts the added code in a
> library instead of the existing files the code in the library would still
> be
> a derivative work. A modified program is a modified program, and one might
> not circumvent this legal effect just by moving code into a library.
>
> However, the situation might be different if an independently created
> application uses an existing standard library. You could argue
> that the application uses the interface of the library, and linking is just
> a matter of interoperability, which seems convincing to me. But you might
> also consider that there is a widely accepted opinion that linking results
> regularly in creating a derivative work under the GPL, and accordingly a
> customary business practice has been brought into existence.
>
> c)
> The situation might be different in the case of statically linked
> libraries.
> If you agree with the interpretation of the GPLv2 I proposed above, the
> program and the statically linked library are not distributed "as separate
> works" and therefore the copyleft applies.
>
> 5.
> The situation is far from being clear. I do not claim to have the
> "right" answer to the question on hand. But I think that we need more
> exchange between lawyers and software engineers for developing our view on
> the issue of linking, an issue courts will have to deal with one day.
>
> Best regards,
>
> Till
>
> --
> Dr. Till Jaeger
> Certified Copyright and Media Law Attorney
>
>
> JBB Rechtsanwälte
> Jaschinski Biere Brexl Partnerschaft
> Christinenstraße 18/19 | 10119 Berlin
> Tel. +49.30.443 765 0  |  Fax +49.30.443 765 22
> Sitz der Gesellschaft: Berlin | Registergericht AG Charlottenburg | PR 609
> B
> www.jbb.de
>
>
>
>
> Am 29.08.2013 22:33, schrieb Bradley M. Kuhn:
> > Larry, I will be more direct since you aren't getting my subtle hints.
>  If
> > you think I've misquoted Till and am somehow damaging his professional
> > reputation, then just say that, simply, to Till, and give him the
> source, and
> > I'm sure Till will take the matter up with me if he agrees with you.
> >
> > Larry, I think what you're actually doing is wasting Till's valuable
> time.
> >
> > Till, just in case you do want to see it, without having to search
> around, the
> > email where I referenced you is at:
> >
> http://projects.opensource.org/pipermail/license-discuss/2013-August/001181.html
> >
> > The specific text that I wrote that mentions you is:
> >>> BTW, if you are interested in how the European lawyers view this
> question,
> >>> I refer you to an excellent talk by Till Jaeger at FOSDEM 2013:
> >>> http://www.faif.us/cast/2013/mar/26/0x39/
> >
> > As you can see, Larry, I didn't, as you claim, represent that Till
> supported
> > any of my positions.
> >
> > Till, thanks again for giving that excellent talk on our track at FOSDEM
> 2013!
> > I'm truly sorry that you've been dragged in to this conversation, and I
> had
> > no idea that sharing the audio of your useful talk with others would
> cause
> > these sorts of unsolicited emails from Larry.
> >
> >    -- bkuhn
> > .
> >
> _______________________________________________
> License-discuss mailing list
> License-discuss at opensource.org
> http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
>

-- 
Patrice-Emmanuel Schmitz
pe.schmitz at googlemail.com
tel. + 32 478 50 40 65
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20130911/8069a1e4/attachment.html>