You have wandered into other points that I am aware of and
that I don’t disagree most of them.

I will go through some of your points.

I am aware that many EULA’s are more restrictive than GPL
but then, GPL is more restrictive than some other licenses
that are more restrictive than the public domain. It is
all about spectrum from the most restrictive license to the
total absence of license.

I am aware that most GPL software does not require you to
click on the “I agree” button. This is what makes it more
friendly than other software because I have the choice of
whether to agree or not to agree to GPL. I can purchase
two copies of GPL software. With one copy, I agree to
GPL. With the second copy, I decline GPL. That way, if
there is a way that I want to do but it is allowed only
by GPL, I will use first copy. If there is a way that
I want to do but it is allowed only by copyright law, I
will use second copy.

Although copyright law allows you to claim copyright in
the collection that includes the public domain works,
the copyright does not extend to the public domain works themselves.
So, I could copy the public domain works individually
from the collection without violating the copyright law.

Because the copyright law covers only the copyrighted works,
DMCA does not cover the public domain works. So, I would
break the encryption to copy the public domain works. There
is no crime in that. However, the companies are too clever
(and greedy) that they wrap around the public domain works
with the license that does not permit you to copy them. The
trick here is to find a way to get around the license such as
copying the files from DVD directly.

If I charge people for using patent in GPL-covered software,
I do not violate anything in the copyright law. There is nothing
that you can do with the copyright law. The only way that you
can stop me from charging people is through contract law where
you can ask judge to order me to stop charging people or to
remove source code that patent covers. Like Matt in previous
comment, you have the wrong concept that every violation of
GPL is also a violation of the copyright law.

As I said before, the definition that GPL uses for “Program”
does not explicitly exclude the public domain works, unlike
some other licenses. The definition is very vague that it
could include the public domain works.

You have to look at the list of activities in the U.S. copyright
law that make up a derivative work. All of them require substantial
portion from the original work. These activities do not include
quoting or copying a portion from other copyrighted work, as allowed
by the Fair Use Doctrine or as permitted by the owner of the copyright.
See http://www.copyright.gov/circs/circ14.html.
GPL, on the other hand, goes beyond than that to include even a small
portion from GPL-covered software.

It is not required to show the entire source code of software to
the Copyright Office for the purpose of registration. I believe
that you only need to show first 25 pages and last 25 pages of
source code. See http://www.copyright.gov/circs/circ61.html for
more details.

I don’t think that you are correct about characters. The Harry
Potter books are a good example. Each new book is not considered
as a derivative book of the previous book. But, each movie based
on each book is considered as a derivative work.

Some licenses are viral and some other licenses are not viral. I
am disagreeing with those who say that GPL is not viral.

Joseph Pietro Riolo
<[email protected]>

Public domain notice: I put all of my expressions
in this comment in the public domain.

You have a wrong concept that every violation of GPL is
also a violation of U.S. copyright law.

Here is a possible scenario: Person A writes software X and
attaches GPL to it and distribute it to the public. The
software X contains 10,000 lines of source code.

Person B looks at Person A’s software X and consents to GPL
that it comes with.

A while later, Person B copies only one very basic function
containing 10 lines of source code from software X to his
own software Y. Instead of making the source code in
software Y available to the public, Person B decides to
distribute only binary code to the public.

A while later, Person A finds out that Person B copies
10 lines of source code from software X to software Y and
also finds out that Person B does not make the source code
for software Y available to the public along with the binary
code.

Person A decides to sue Person B.

Let’s use your assumption that breaching GPL is equivalent
to breaching copyright.

In court, Person A explains the situation to judge. Person
B will use the Fair Use Doctrine to justify the copy of 10
source code. After going through four factors in the Fair
Use Doctrine (purpose is for research, the copied function
is mainly an utility, only 0.1% of software X is copied, and
no effect on potential market or value of software X), the
judge decides that Person B does not infringe Person A’s
copyright. Therefore, Person A can’t use any of the remedies
available under the copyright law.

What Person A is supposed to do? The next step is to show
that Person B violates GPL. After seeing at the evidence,
the judge decides that Person B violates GPL because he
does not make source code available to the public as required
by GPL.

What are the remedies that Person A has for the violation
of GPL? Not much. Person A can ask judge to order Person
B to make source code in software Y available as per GPL
or remove 10 lines of copied source code from software Y.
More likely, the judge will order the latter.

You are entitled to your opinion about GPL. A lot of people
love GPL. That is their choice. I am correcting your
wrong concept on how GPL and copyright law interact.

Joseph Pietro Riolo
<[email protected]>

Public domain notice: I put all of my expressions
in this comment in the public domain.

First, the GPL does not regulate “Use” (Utilization such as loading and running) of the software- Unlike most EULAs. Go reread the GPL and then go read Eben Moglen’s speach on how there is no reason under copyright to have a license to “use” a computer program. In fact this was in part the purpose of CONTU. Read in paticular chapter 3 of the final report;

“The 1976 Act, without change, makes it clear that the placement of any copyrighted work into a computer is the preparation of a copy and, therefore, a potential infringement of copyright….Because the placement of a work into a computer is the preparation of a copy, the law should provide that persons in rightful possession of copies of programs be able to use them freely without fear of exposure to copyright liability. Obviously, creators, lessors, licensors, and vendors of copies of programs intend that they be used by their customers, so that rightful users would but rarely need a legal shield against potential copyright problems. It is easy to imagine, however, a situation in which the copyright owner might desire, for good reason or none at all, to force a lawful owner or possessor of a copy to stop using a particular program. One who rightfully possesses a copy of a program, therefore, should be provided with a legal right to copy it to that extent which will permit its use by that possessor. This would include the right to load it into a computer and to prepare archival copies of it to guard against destruction or damage by mechanical or electrical failure. ” – from the “Final Report of the National Commission on New Technology Uses of Copyrighted Works”

Section 117 of the current copyright law was rewritten to CONTU’s recomendations explicitly so that a user would not need a license to use software. Congress did make one serious change in adobting CONTU’s Recomendation. Congress changed legal possesor to owner of copy in section 117. It is certain elements of the software industry that have tried to use a weird combination of State Contract and State Trade Secret Law to pervert the law so that consumers loose their first sale rights and their rights under section 117 including the right to adapt or have the software adapted for their computer.

Most GPL software in fact does not require you to click I agree or anything before you use the software. Many GPLed softwares, especially ones written to run on Linux, BSD, Darwin, Ect don’t even have installers and you must compile it yourself.

Second, The copyright act does allow you to take Public Domain works and add your own materials to it and claim copyright over the whole as a collection. This is done often with classical works and works in public domain in paticular movies in the public domain – not to mention that the Media Companies also tend to encrypt PD movies and use access control systems on the DVD- BTW as of right now you can’t legaly break the encryption to access the content of encrypted DVDs even if they are in the Public Domain – see the 321 Studio cases if you don’t believe me. A good reason for you to write your Congress-Person saying they should supporty laws which reform the DMCA such as the DMCAr

Unlike works of the US Government, you may take materials in the Public domain and create a collection and claim copyright over the collection. It does not “Pollute” or infect your work to take PD materials and insert them into your copyrighted collection. This is why the copyright notice on classic works that is dated with a current date indeed is valid. Works of the US Govt if not properly attributed used to make the entire work loose its copyright. That rule in the Copyright Act however has been changed, even though the US Patent office still has warnings about such- Raises the question why the USPTO was offering advice on Copyright Law when the LOC is the shepard of copyright and not the USPTO- that is a long and complicated story involving politics, power grabs, and the such which is OT and too involved really to get into here.

Third, you are corect in your assumption that the GPL was not designed to enrich the public domain. The GPL was designed so that university instructors, students, and others could collaberate with one another even though the university/ employer forced them to sign a NDA or IP clause. In the case of NDAs it works as a defensive mechanism as in the person bound by the NDA may not publish the work but neither can the University/Employer without revealing the Trade Secrets thus making the NDA useless. This is why there are clauses in the GPL to handle that.

“If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all.” – from section 7 of the GPL

To understand this you must understand the history of the GPL and also understand that many Universities tend to force both students and staff to sign IP cluases- meaning the University Owns any IP the Student or Proffesor creates. In the case of Students, and why you see many Student GPLed projects, it is a double whammy as they paid to attend the University and then the University gets ownership rights to their work – In otherwords the students are paying to get their work stolen. The students and professors to rebel against this, intergrate their work with existing GPL work and the University, who wants to Publish for Prestrige, is left in a pickle- either publish and get the prestige but loose control of the work or sit on it forever and not let anyone know about it. The Universities, who like to publish things tend to go ahead and publish.

Fourth, you are wrong about charging a royalty or patent the work to flout the GPL. If you violate the GPL you will not be sued for contract law violations in state court, as SCO has discovered in IBM’s counterclaims, but rather for copyright infringement in Federal court. That is written clearly into the GPL- I don’t know where you came up with your conclusion. Reread section 5 of the GPL.

Also reread section 301 of the US Copyright act and remember the GPL specifically only covers US Copyright Act section 106 covered activities. It does not cover use.

Fith, if it is in Public Domain you can get the original source and copy all you want. Nothing in the GPL prohibits that. As copyright in the US lasts 75 years after the authors death there is no GPLed software that has fallen into the Public Domain. If an author of a piece of software releases originally under the GPL but then latter attributes it to the Public domain only the portion that he/she wrote goes to Public Domain- not the entire work. Again from the LOC-

“(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. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material” -from section 103 of the US copyright act.

Likewise if an author who decides to republish under the BSD or other license decides to relicense their code they may only do so with their code not any other author’s contributions becuase the GPL does not transfer copyright ownership as the grant comes from the original author.

Sixth, US Copyright Law does not define how large a portion can be used to make it a derivative work. There is the Fair Use deffense but you still have that deffense if you use GPL software. Fair Use however is an affermitive deffense meaning the defendant must prove that their use satisfies the requirements.

Seventh, US Copyright Law does require that you register the materials you want protected by copyright and send several copies of it to the LOC. If you fail to do this you can not file suit for copyright infringement and if you fail to register prior to 3 months before filing suit you only collect real damages. If you file later than 3 years after the infringement you can not collect any civil damages and after 5 years there are no criminal damages – see chapter 5 of the US Copyright act. So, yes US copyriuight law does require you to show the source to people, at least the LOC, if you want copyright protection in the US.

Eighth, unfortunatly you are wrong about characters in books not being considered derivatives. FanFicts and FanArt technically are infringing unless the author can sucessfully argue a Fair Use defense. Remember Fair Use is an affirmative defense and it is up to the alleged infringer to prove that it was fair use. Randel’s “Wind Done Gone” was initially found to infringe Michell’s “Gone with the Wind” in 2001 becuase it copied characters and plot from “Gone with the Wind” and was enjoined to stop production in 2001. The case was apealed and the injunction was vacated by the COA. The case was ultimatly settled out of court with Mitchel’s estate donating money to a black college- Mostly becuase they didn’t want a fair use ruling for it being a parody. Heck we are on Lessig’s blog go read “Free Culture” as he explains what is wrong with the current copyright law with regards to Fair Use Defenses and the such.

Ninth, the GPL reads like a standard royalty agreement. Although you are correct in some regards that royalty agreements are not written into copyright law it is not the same as a EULA which reads like a funky perpetual lease agreement.

Royalty agreements are covered by copyright law in such that if they are broken you are sued for copyright infringement . If charged with infringement you can make any number of affirmative defences, such as fair use, the portion you copied was public domain, the portion you copied was not protectable, ect.

The typical EULA on the otherhand, unfortunatly, is not the same as it claims that you essentially are making a perpetual non-transferable lease to utilize the content. EULAs claim from the get go that you do not own the copy- if they didn’t then they would have to honor the US Copyright Law Sections 109 and 117 limitations. Depending on which state you reside in the only rights you have under a EULA, assuming its enforcable, is those spelled out in the EULA. This is of course if they didn’t do something silly like define “use” as copying the software in which case the EULA could be prempted such as in Vault v. Quaid. Also if the EULA contract does something silly like inhibit free speech for no good reason, such was the case in New York v. Network Associates d/b/a McAfee Software where the EULA prevented the user from writing disparaging but true things about the software, the license in whole or in part may be found to be not binding.

You should also not that such EULAs under the license but not sold theory have been found to be considered sales see; RRX Indus.Inc. v. Lab-Con Inc., Applied Info. Mgmt. Inc, v. Icart, Novell, Inc. v. CPU Distrib., Inc., and it goes on and on and on and on. The cases which allow licensed and not sold mentality are in the minority. Not to mention that several states have passed legislation to change their version of the UCC to protect their citzens from UCITA and in these states with ANTI-UCITA typically you do “buy” the software and the contract is completed when you transfer funds for the copy of the software.

Tenth, almost all software licenses to create derivatives are “Viral” with some exceptions such as the BSD license. Have you read the AT&T Comercial Unix License or the Microsoft Shared Source License. If not go read them. Essentially the licensing company claims to own your work. The same is true with the license that covers JAVA and the “Open” Macromedia Flash Player develpers license. Also note that Daimler-Chrysler was sued by SCO for failing to comply in a timely fashion with certification that they kept any trade secrets regarding Unix secure 7 years after they stoped using Unix. Now tell me which license is viral.

If you breach the GPL attaching to my programme, my remedies are under copyright law. In particular, if you do not make source code available when you distribute a binary of my code, then I can sue you under copyright law for breach of my copyright – that is, you have copied my work, and distributed it without my permission. Breach of copyright – nothing more, nothing less. If you modify my work to include patented material, and then distribute it without the requisite patent license, I can sue you for breach of copyright. You have copied, modified and distributed my work without my permission. Breach of copyright – nothing more, nothing less. I cannot force you to grant the requisite patent license.

The GPL works by setting out the basis on which I am prepared to permit you to breach my rights as a copyright holder, which you would otherwise not have if I didn’t give you such permission. If you do not follow the terms of that permission, then you do not have permission, and my remedies are based on the copyright statute. I doubt I would ever get a remedy of specific performance, as you have not agreed to do anything. That is why by putting a few lines of GPL code into Windows, MS cannot be forced by the courts to GPL windows. The owner of the GPL code could sue MS, or require that the code be removed, but could not force the code to be GPL. There is no such remedy based in copyright law, and therefore no such remedy as a consequence of using the GPL.

The concept is very simple. Eben Moglen should be congratulated for formulating such a simple, elegant and robust solution. It is stunning in its simplicity. I think that’s what gets most people. They expect the GPL to be incredibly complex. It can be in its application to things like shared libraries. But at a conceptual level, it is very simple.

Matt

Regarding the public domain works, this is not explicitly
excluded by the GPL. Compare it with some Creative Commons
licenses that explicitly state that they cover only the
copyrightable works. GPL’s definition of “Program” could
include the public domain works. One way to avoid GPL
if I want to use the public domain portions is to decline
it. That way, the source code is under the copyright law
and because the copyright law does not cover the public
domain works, I can copy them without any problem. The
key here is not to agree to GPL at the first place.

Your insistence that GPL does not cover the public domain
works is not supported by the language and wording in GPL.
GPL should be revised to clarify that it covers only the
copyrightable works. But, it is not surprising that FSF
chose not to do so because it does not embrace the public
domain which is not compatible with the philosophy behind
GPL.

Your examples of classic works is very different from GPL.
The difference is that there is no license or contract
that you have to agree to in order to use classic works.
Therefore, the classic works are not bound by any terms
and conditions that are found in license or contract. But,
suppose that a company wrap around a public domain classic
novel with license or contract that does not allow you to
copy the novel. If you agree to the terms and conditions,
you are bound by them. Again, the key here is whether you
agree to terms and conditions at the first place.

The problem with GPL’s definition of derivative is the
clause that says that any work that contains a portion of
the GPL-covered software is considered as a derivative work.
This is regardless of how small or big the portion is. For
example, if I copy only 10 lines from a GPL-covered 1,000-line
program to my program, according to GPL, my program is a
derivative work of the GPL-covered program. This is not so
with the copyright law. Just because you copy a small portion
from a copyrighted work to your work does not automatically
make your work a derivative work, according to the U.S.
copyright law. The derivative work, according to the U.S.
copyright work, has to be substantially similar to the original
work. As an example, a series of books usually have same
characters but not every book is a derivative work of the
previous book in the series.

This is why GPL is considered as a viral license. It all
takes a small portion of a GPL-covered program to subject
your work to GPL if you agree to terms and conditions at the
first place and copy the portion to your work.

Joseph Pietro Riolo
<[email protected]>

Public domain notice: I put all of my expressions
in this comment in the public domain.

First, you would not need to specifically exclude works in the Public Domain. It is in the Public Domain and thus could be used. In fact if you could extract the portion not in public domain then you can use it. The book publishing companies in fact do this all the time. Especially with classic works where there is either a forward or an abridged copy.

Purchase a book and look at the copyright notice. It will typically say “All rights reserved, which includes the rights to repoduce this book or portions in any form except as provided by Copyright Law. For information address: [Name and address of publisher]” Notice that in no place does the copyright notice on almost every published book list when it expires.

Second, If you grab a modern play script from any theatrical store on the first page you will find the license to publicly perform the play. The license will tell you how much to send the copyright holders agent to perform it publicly. No where in this license does it specify a date where as you should not send the money. If the material is in Public Domain then it is in Public Domain and there is no exclusive right to perform it publicly.

Third, I am not sure about how and why you come to the conclusion that the GPL goes beyond the definition of Derivative works.

Section 100

” A �derivative work� is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a �derivative work�.”

also see section 103

“(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. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”

so tell me exactly how that is different than this

“a “work based on the Program” means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term “modification”.) ” – from section 0 of the GPL.

Also note from Section 0 of the GPL-

“Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.”

Explain to me exactly how this definition is different than the US Copyright definition?

Third, a computer progrm is � a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result” – yes its vauge but blame congress and the special interest groups as they are the ones who made it so.

Fourth, most EULAs trie to re-grant rights explicitly limited from copyright holders in sections 109 and 117 back to the copyright holder. The GPL grants rights covered in section 106 to the end user.

It has already been pointed out that section 6 addresses the question of transfer – this is section 6 of the GPL “6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.”

as to Daniels objections;

– see section 5 of the GPL “5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.”

There is no magical transfer here. The GPL itself is the transfer mechanism

“� 204. Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

There also is no Magical Sublicense there. Your license to copy, ditribute , make derivatives is from the original author per section 6 of the GPL. This is why the GPL must be present on all works distributed under the GPL. If the GPL is not present on the works then you have no right to distribute the work from the original license becuase that is what the author licensed you to do- see section 5 of the GPL. By not distributing it with the GPL text you infringe the copyright of the original author. This is the same as those play scripts I talked about earlier. If you perform the play without following the license terms, typically paying a royalty to the author’s agent, you infringe copyright.

Furtherore the GPL has been enforced by courts, just not in the US yet. Don’t worry though as IBM included copyright infringement in its counterclaims against SCO in SCO v IBM. SCO has been distributing IBM’s code which IBM licensed under the GPL in a maner that violates the terms of the GPL.

Also those law professors … well you do realize that many of them Were/Are judges don’t you??

Your statement of “nothing more, nothing less” is not
entirely correct. GPL is not a subset of the U.S.
copyright law. GPL does more than what the U.S. copyright
law covers. For example, GPL requires you to include
the wording of GPL or reference to GPL in every copy
of source code. The U.S. copyright law does not require
that.

GPL requires you to make your source code available
to people. The U.S. copyright law does not require this.

GPL requires you to make patents available to people
free of charge. The U.S. copyright law does not require
this.

GPL is not nothing more, nothing less. How is it possible
that GPL can do more than what the U.S. copyright law
covers? The answer is through the power of contract from
where license comes.

A person can flout GPL (i.e. by requiring people to pay
royalty for patent) and still abide by the U.S. copyright
law. Under what law can you sue the person? Not under
the U.S. copyright law but under contract law in states.
Not every violation of GPL is also violation of the U.S
copyright law.

Joseph Pietro Riolo
<[email protected]>

Public domain notice: I put all of my expressions
in this comment in the public domain.

If I am a copyright holder and say, you have permission to do x, and you have the right to grant other people the right to do x, then I am authorising the sublicense of my copyright work, as the owner. There is no inconsistency here with section 106. What makes this different to a proprietary license, where the owner can authorise sublicensing? Why the distinction. Are proprietary licenses also pre-empted? They would be on your arguments.

To argue that the sub-licensee is not a party to a licensing contract with the owner is irrelevant. As has been argued to death, the GPL is not a contract. It is a license. It gives you permission to do something, that without permission, you would be prohibited from doing by Copyright legislation. Nothing more, nothing less. You can choose to abide by it, and not breach Copyright law, or you can flout it and breach Copyright law. It is not a contract.

Matt