[linux-elitists] questions about GPL again

Rick Moen rick at linuxmafia.com
Fri Mar 9 09:33:39 PST 2012

Quoting Eugen Leitl (eugen at leitl.org):

> In the corporate wonk oh-noes-we-have-to-opensource-everything-touched-by-GPL
> sense.

Which is crap.

The remedies available to plaintiff for copyright violation (_if_
proved to the court's satisfaction) are cessation of violation and
payment of damages, the latter of which can be a lot higher if the 
author paid to register the copyright, as is not often done.  There is
no precedent whatsoever for violator being ordered to give plaintiff
access to violator's other copyrighted creations.  None.

The example usually alluded to (usually inaccurately) is a case in
point, that of NeXT, Inc.'s binary-only ObjC frontend code for gcc.
Contrary to the narrative usually claimed, NeXT wasn't ordered to hand
over source code and wasn't even hauled into court.  FSF merely politely
reminded NeXT that their method of distribution was in violation of FSF
copyright.  NeXT quickly figured out that their reasonable options were
to either cease shipping the offending code (and maybe get sued for
damages, but probably not) or to voluntarily provide the source code and
thus retain the ability to ship it rather than having to find or code or
buy a substitute for gcc.  They elected to release code -- entirely for
reasons of corporate interests.

> I'd rather like to be able to cut through the FUD authoritatively. 

Read caselaw about what 'derivative work' does and does not mean in the
broad context of copyright law.  In US jurisdictions, you would start
with CAI v. Altai, Inc. (982 F.2d 693, 23 USPQ2d 1241 2d Cir. 1992), 
which was further detailed in Gates Rubber v. Bando Chemical (9 F.3d
823, 28 USPQ2d 1503 10th Cir. 1993).  Also read Micro Star v. FormGen,
Inc. (154 F.3d 1107 9th Cir. 1998).

You'll learn about analysing a creative work to identify its creative
elements vs. its functional elements (ones dictated by functionality or
compatibility).  The latter are not eligible for copyright protection in
the first place, just like elements borrowed from the public domain.  A
derivative work created with unlicensed reuse of an excessive number of
creative elements from a second work infringes that second work's
copyright, unless there are affirmative defences sufficient to allow
that use.  Types of defences:  fair use, copyright invalidity,
independent creation, de-minimus, statutory limitations on holder righs,
expiry, forfeit, preemption, permission, misuse, abandonment,
acquiescence, estoppel, unclean hands, other equitable defences.

If you read the caselaw, you will get a good sense for the sort of way
judges analyse such matters, and it's broadly consistent across all
types of copyright-covered works.  There's nothing all that special
about software in that regard, and there's no reason to think it
particularly likely judges are going to pay much attention to
technological trivia like the exact method used for linking object

> Is there anything specific e.g. written by Eben Moglen I could point
> poor confused souls to?


Tell the poor confused souls to stop trying to figure out exactly how
close they can come to ripping off open source coders by incorporating
GPL-licensed codebases into proprietary (or incompatibly licensed)
works, and just follow common sense and the practices of untold numbers
of large corporate users of copylefted codebases who have no legal
problems from doing so.

If they're consumed with worry, they can pay a lawyer to soothe their
nerves and tell them what to do, which is something they would have to
do with any expensive project using code under any form of licensing
whatsover anyway.

Cheers,                  "My generals are always right about other people's 
Rick Moen                wars and wrong about our own."  -- LBJ
rick at linuxmafia.com  
McQ!  (4x80)

More information about the linux-elitists mailing list