[License-discuss] proposal to revise and slightly reorganize the OSI licensing pages

[Chris Travers]

On Fri, Jun 8, 2012 at 12:49 AM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting Chris Travers (chris at metatrontech.com):
>
>> Maybe I misunderstood what Larry Rosen was saying about the
>> differences in the BSD and MIT licenses in his book then ;-).
>
> Oh, there is.
>
> The alleged '{relicensing|sublicensing} of BSD code', however,
> inevitably turns out in the real world to be a somewhat melodramatic
> mischaracterisation of a derivative work.  Thus my point.

I don't think so.  When we look at the case where this was raised as a
controversy (a wireless driver in Linux taken from, iirc OpenBSD), the
allegation was actually that no derivative work was created.  The code
was just included wholesale and the license changed.  The argument was
"you changed the license on this file of code and you didn't even
modify the code."  That's not really a derivative works argument as
far as I know.
>
>> The Nusphere case is more interesting when we stop thinking about
>> software and look at copyright as protecting what might be thought of
>> as "software as literature" or "software as expression."

> Who cares what GPL (either v2 or v3) 'means'?  The boundaries of
> the legal concepts of 'aggregated work' and 'derivative works' are
> determined by judges based on guidelines from caselaw, not by anything
> written by Prof. Moglen.
>
> If you're trying to learn copyright law by reading copyleft licences,
> you're wasting your time, in my experience.  Try relevant caselaw.

True, which is why I have sought out law review articles and case law.
 I would think that a case like MySQL v. Nusphere if it came up today
would still be a case of first impression, would it not?  I haven't
yet found a case directly on point (the closest maybe being Gates
Rubber).  Maybe you have found a closer one.
>
>
>> Whether the Geminii table engine would be a derivative work of MySQL
>> is a question that I don't think the jurisprudence is clear on (IANAL
>> again).
>
> You _seriously_ think compiling a work directly into a second one in a
> functionally integral manner doesn't create a derivative work?  Well,
> I'll just quote Damon Runyon (riffing off Ecclesiastes 9:11):  'The race
> is not to the swift, nor the battle to the strong..., but that's the way
> to bet.'  ;->

Yes I do.   Here is why:

 Copyright in US law protects expressive elements to the extent that
they are separable from functional elements.  You can't use copyright
to protect pure function.  Example.  If you publish a cookbook, and I
take 10 recipes from your cookbook and include it in my cookbook
(edited to conform to my style), you are going to have a hard time
arguing that this is copyright violation even if I put them in a
section saying "excerpted from Rick Moen's cookbook" (if I copy all or
nearly all of them you might be able to argue selection and ordering
are sufficiently expressive to make this a copyright violation issue).
 Now, if instead, if your recipes are written in heroic hexameters and
I copy them, then I am copying your poetry and they are no longer
merely functional recipes.  Now I am in trouble.

Derivative works are an area that's originally meant to deal with
things from literature including sequels (a book based on another
book), movies based on books, etc.  Fan fiction is a classic example
of of a genre of derivative works.  Applied to software it gets funky.
 The main US case of this sort that doesn't involve video games
(excluding video games because they are protected both as software and
as audio-visual works so that is not a clear parallel) is Gates Rubber
v. Bando (http://digital-law-online.info/cases/28PQ2D1503.htm) where
the 10th Circuit applied an abstraction/filtration/comparison test to
determine whether one piece of software was derived from another,
concluded the district court got things wrong and sent it back to
district court.  I believe other circuits have generally followed the
10th Circuit on this but I am not certain.

As to including one work in another, collected and compiled works are
closer to the mark if that's the only consideration.  Suppose, for
example, that I create an anthology of the scholarship relating to,
say, element formation in stars.  To make this anthology useful I add
footnotes cross-referencing the various papers with a link to a page
number so the reader can easily JMP from one section to another and I
add a nice bookmark ribbon so when JMPing to reference, it's easy to
return again, I don't think Fred Hoyle's estate can come and sue me on
the basis that "we gave you rights to create a compiled or collected
work and you've created a derivative work by adding these footnotes."
So I don't know what would differentiate two binaries on an ISO from
two libraries in a binary.

I think that if you could show that there was continuity of expression
between MySQL's work and Nusphere's work beyond mere use of the API's
then that would clearly satisfy Gates and related cases and it would
be a derivative work.  I will however say I haven't found a case
addressing linking and derivation directly--- the closest might be
Galoob v. Nintendo but that addressed games as audiovisual works and
was decided on the basis of literary analogies.  Similarly Midway v.
Arctic addressed audio-visual elements of Pac Man, not really the
mechanics of derivation in a binary.  So I do think it would be a case
of first impression.

Perhaps you know of cases that are more on point?

Best Wishes,
Chris Travers