Tarball licenses (was: Free documentation licenses)

[John Cowan]

I apologize for the length of this, but I think it raises some
fundamental issues that need to be clearly thought out.

Rick Moen wrote:

> Case 1.  Programmer Alice wrote source modules A and B.  Her copyright
> notice grants BSD usage and distribution rights.  You put A and B into a
> tarball, making no changes to them, and assert in an included file
> copyright over your "derived work" and that it is GPL-covered.
> 
> Here, it is clear that you have delusions of grandeur and own (at best)
> the very thinnest of possible _compilation_ copyrights.

That is the case I had in mind (or something like cat-ing the files
together).  As you say, my rights are minimal and of no practical
effect.

> Case 2.  [...]

No disputes here.

> Case 3.   Programmer Alice wrote source modules A and B.  Her copyright
> notice grants BSD usage and distribution rights.  You improve module A,
> and throw the improved version with module B into tarball X, asserting
> in an included file copyright over your "derived work" X and that it is
> GPL-covered.

Let us suppose that my changes rise to the level of a derivative work
(reformatting doesn't cut it, e.g.).  So now I have module A1.

>   Case 3a.  You alter module A's copyright notice to assert that it
>             was created by Alice _and_ you, and that it's now GPLed.
>   Case 3b.  You alter module A's copyright notice to assert that it
>             was created by Alice _and_ you, and that some of the file
>             is BSD-licensed and some of it GPLed.
>   Case 3c.  You leave module A's copyright notice alone.
> 
> Here, your property consists of some claim to module A and (if you care)
> compilation copyright on tarball X.  You rightfully point out that A
> has now moved beyond Alice's accomplishment, and assert that you deserve
> copyright over the difference as being your creative work.  But I doubt
> (IANAL) that you can effectively assert that right and have it upheld,
> as your work is thoroughly entangled in Alice's, which you're not
> entitled to relicense unless you acquire her copyright.

I think this is pretty clearly wrong.  If I acquire a license to work A
(a public license or otherwise, no matter), and create from it a derivative
work A1, that work A1 is *copyrightable*, and I may enforce license breaches
with respect to the parts of A1 that are not copied from A.  (See
the copyright law excerpt at the end of this posting.)

Suppose I acquire a license to translate Alicia's Spanish book, A, into
English.  My English version, A1, has a derivative copyright, and I can
sue people who make unlawful copies of it.  But I cannot prevent Alicia
from giving Roberto another license to make a different translation.
(The two translations would probably undercut one another in the
marketplace, so Alicia is unlikely to do this in practice.)

> In 3a, Alice hauls you into court over copyright infringement, and
> prevails:  You attempted to misappropriate her property, and will be
> rapped over the knuckles.

Not at all.  My defense is that Alice licensed me (as a member of the
public) to create and distribute derivative works.  As long as I
conform to the BSD stipulations, I am fine.

>  Meanwhile, Bob can successfully ignore your
> assertion about A.

About the original A, yes; about my modified A1, no.

> In 3b, Alice will be pissed off over the hash you've created.  [...]
> Whether [Bob] can get away
> with using your version of A depends on whether Alice's judge would hold
> that you've contributed to Alice's BSD codebase, or retain some rights.

I can't possibly have "contributed to Alice's codebase" unless I signed over
my rights in the part I wrote to Alice, or I did something that clearly
communicated my intent to do so (such as uploading it to a clearly marked
repository of patches-handed-over-to-Alice).
 
> In 3b, Bob takes from X your new version of Alice's BSD codebase, and
> maybe sends you a thank-you note.

He better not.
  
> I meant "best" as in "most fruitful" or "most conducive to useful
> knowledge and mastery of the subject".  That is, the question usually
> at issue for a composite work is:  Is it legally distributable?
> [...]  My point is that they will find it more _fruitful_ to think of
> the package as a collection of modules with individual licences, whose
> interaction determines distributability.

An excellent point.

> Bram went on to help Pat Beirne create the MakeDoc utility, whose source
> code I eventually tracked down.  It likewise has no explicit licence.
> Beirne's last version was a Java one, MakeDocJ, which I can no longer
> find.  However, Jeffrey A. Krzysztow found Beirne's Java code, improved
> it, and purports to place the result under the GNU LGPL:
> http://linuxmafia.com/pub/palmpilot/MakeDocJ-3.6.0.zip .
> 
> I would estimate that Krzysztow's LGPL assertion is simply ineffective,
> as it would violate Beirne's rights,

Specifically the right to control the making of derivative works.

> which would mean that, technically,
> the Beirne-derived source modules in MakeDocJ-3.6.0.zip remain under
> Beirne's non-licence,

Namely, all rights reserved.

> are technically not legally redistributable, and
> do not belong in either of my directories.  I may get around to
> mentioning this in the directory index, but have not hurried because
> it's pretty clear that Beirne does not object.

Now that's a horse of a different color.  Licenses, other than outright
transfers of copyright, need not be in writing or have other formalities.
If there is a plausible claim that Krzysztow had an (unwritten) license
from Beirne to create a derivative work, then K. can license the
derivative work under the LGPL or otherwise. 
 
For reference, here is section 103 of 17 USC with emphasis added:

# § 103. Subject matter of copyright: Compilations and derivative works
#
# (a) The subject matter of copyright as specified by section 102
# *includes* compilations and derivative works, but protection for a work
# employing preexisting material in which copyright subsists does *not*
# extend to any part of the work in which such material has been used
# unlawfully.
#
# (b) The copyright in a compilation or derivative work extends only
# to the material contributed by the author of such work, as
# distinguished from the preexisting material employed in the work,
# and does not imply any exclusive right in the preexisting material.
# [...]

-- 
There is / one art                   || John Cowan <jcowan at reutershealth.com>
no more / no less                    || http://www.reutershealth.com
to do / all things                   || http://www.ccil.org/~cowan
with art- / lessness                 \\ -- Piet Hein