Date: 17 Dec 2001 16:14:01 -0800 From: swear@blarg.net (Gary W. Swearingen) To: Jonathan Lemon <jlemon@flugsvamp.com> Cc: chat@FreeBSD.ORG Subject: Re: IBM's intentions with JFS (was: IBM suing (was: RMS Suing was [SUGGESTION] - JFS for FreeBSD)) Message-ID: <5dpu5d1j1y.u5d@localhost.localdomain> In-Reply-To: <20011217160411.G377@prism.flugsvamp.com> References: <local.mail.freebsd-chat/3C186381.6AB07090@yahoo.com> <local.mail.freebsd-chat/20011214122837.O3448@monorchid.lemis.com> <local.mail.freebsd-chat/3C19807D.C441F084@mindspring.com> <local.mail.freebsd-chat/4.3.2.7.2.20011214175450.02da2a90@localhost> <local.mail.freebsd-chat/4.3.2.7.2.20011215232233.00e74cc0@localhost> <local.mail.freebsd-chat/4.3.2.7.2.20011216221810.031b6820@localhost> <local.mail.freebsd-chat/4.3.2.7.2.20011217001345.00e26280@localhost> <local.mail.freebsd-chat/20011217185738.N14500@monorchid.lemis.com> <200112171739.fBHHdJj86694@prism.flugsvamp.com> <293d2935g7.d29@localhost.localdomain> <20011217160411.G377@prism.flugsvamp.com>
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Jonathan Lemon <jlemon@flugsvamp.com> writes:
> On Mon, Dec 17, 2001 at 01:24:56PM -0800, Gary W. Swearingen wrote:
> > It might be wrong, but it's not ridiculous. There IS a copyrightable,
> > licensable "work" which is the CD-ROM (or even a collection of FreeBSD
> > OS files on a FTP site). Since that work contains GPL code, one must
> > interpret the GPL to determine whether use of the GPL code is allowed
> > without putting the whole work under the GPL. Note that the GPL broadly
> > defines "Program" as anything and everything the GPL is applied to.
>
> No, I'm sorry, this is still ridiculous. By this same logic, if I
> was a hardware vendor and decided to bundle a RedHat 7.2 CD among the
> estra software packages, you would have me extend the GPL to include
> everything, including the Microsoft Windows CD.
>
> I suppose that you can argue about the interpretation of the word
> "based" in the license; as opposed to saying "included".
>
> I believe the above interpretation is stretching the realm of the absurd.
Well, I guess "ridiculous" and "absurd" are in the eye of the beholder.
Your "same logic" arugment is interesting, and you might have come up
with a hard case, but you didn't. Few would think that putting a Red
Hat CD and M$ CD in a box forms a new work of authorship deserving
of copyright protection, and those who do will need to worry about
infringing the GPL by putting it in a partly M$EULA-protected work.
Consider this from 17 USC 101:
compilation -- For copyright purposes, a work formed by selecting
and assembling preexisting materials (generally facts or data
unprotected by copyright) in a unique way to form an original work
of authorship. A database is a good example of a compilation. A
compilation must have some creative aspects--such as the way it is
organized and the materials selected for inclusion--to qualify for
copyright protection. For example, a list of favorite Web sites
including the word "gelatin," arranged by category, would be rather
creative, while a phone directory would not.
But few (CD publishers) would NOT think that a CD is a copyrightable
work. (My Red Hat CD has their copyright claim printed on it.)
From the GPL:
The "Program", below, refers to any such program or work, and 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.
Note the "a work containing the Program or a portioin of it" part.
(There's no need to argue about the interpretation of the word "based"
as you propose.) Why is a Red Hat (or FreeBSD) software compilation on
CD not a "work based on the [GPL'd] Program"? (It is also a collective
work, since it contains publisher-owned work, and is definitely worthy
of copyrights.) And like I said, you then have to the GPL to try to
learn if it allows distribution as part of such a work without infecting
the other work. That's debatable and reliance on any conclusion is
legally risky. Acceptably so in the case of things like gcc and binutils
where the owners have made us feel comfortable that they will continue
to allow such use regardless of the GPL. Also acceptably so for much
other software because of the common (mis?)understanding of the GPL
which holds certain uses (like in collective works) non-viral so that
the risk of being sued is small.
So it is law and the language of the GPL that you should find absurd.
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