Path: utzoo!utgpu!jarvis.csri.toronto.edu!mailrus!ncar!ames!rex!kozma From: kozma@rex.cs.tulane.edu (John Kozma) Newsgroups: comp.misc Subject: Re: The GNU Public License Message-ID: <993@rex.cs.tulane.edu> Date: 3 Aug 89 04:29:43 GMT Reply-To: kozma@rex.cs.tulane.edu (John Kozma) Organization: Computer Science Dept., Tulane Univ., New Orleans, LA Lines: 361 Sender: Followup-To: I'm reposting this in comp.misc because the thread seems to be more active here, and I'm not sure whether it actually got posted the first time. I suppose I should include a disclaimer to the effect that the opinions expressed here are my own. And I might add my opinion about exerpting from this article for purposes of responding to it-- it's fair use. Copyright 1989 John P. Kozma Permission to copy all or part of this material is granted provided that the copies are not distributed for direct commercial advantage, and that this notice appears on all copies. I have been following the lively discussion about the GNU license, and decided my opinions on copyright law matters might be of interest. Thanks to Peter da Silva for posting a copy of the GNU CC license. For all of you who don't have ready access to a law library, or the inclination to look up the US Code, exerpts from the copyright law (US Code, Title 17) referred to in this article are appended. I'm a newcomer to the net, and I suspect I missed a major portion of a discussion on a proposed or implemented scheme whereby an alternate network feed would be provided for a fee to subscribers, and supplied with articles from this network. If you don't want articles you post to the net to be used in this manner (ie, for someone else's profit), you can include a copyright notice like the one above. In general, if you publish anything without a copyright notice as prescribed in 17 USC 401, you lose your copyright. As has been pointed in previous articles, the work does not have to be placed in the public domain to allow free copying. With respect to the ammendment to the minimal notice on this article, see 17 USC 405(a). I don't want to stray too far from my opinion about what the law is to what I think it should be, but by way of introduction to my opinions on the GNU license, I think the law is too pro-copyright, and too anti-public. In particular, I get very upset by overreaching on the part of publishers and copyright owners, and I think there ought to be stiff penalties, like forfeiture of copyright, to those who deliberately mislead the public. Case in point (1): A few years ago, I bought a new copy of Shakespeare's Complete Works with a new copyright notice. I realize the way the book is laid out may give rise to a copyright on a "compilation" (17 USC 101), but I'm sure most people don't know that, and I suspect the publisher's intention is to lead the public to believe that Shakespeare's plays are not in the public domain, or at least that his plays can't be copied from that particular volume without the publisher's permission. Case in point (2): I bought a Radio Shack TRS-80 III computer (though I now regret having done so) with TRSDOS operating system software which came with a "license agreement" which made me absolutely livid when I read it. The most offensive part said something to the effect that the licensee is not allowed to disassemble the object code. Again, I realize that a licensee may bind himself in many ways that go beyond the licensor's rights under a copyright, and that copyrighted material may even be protected by trade secret (which TRSDOS purportedly was, although I'm not sure that legal issue has been completely resolved), but the whole notion of copyright rests on the percievability or communicatability of the work by humans (see 17 USC 101-102). (The "by humans" is not in the statute, but I would agrue that it is implied by a simple rule of construction. That is, the phrase "either directly or with the aid of a machine or device" would be redundant if a machine were said to percieve of its own.) For practical purposes, object code cannot be percieved directly by humans without first being disassembled. An argument that no license can limit the right to disassemble copyrighted object code (provided the copy of the code being disassembled is authorized and national security interests aren't involved, etc.) is is further supported by 17 USC 107. The lesson of case in point (2) is that copyright law is not a very appropriate form of protection for computer software. This lesson is further demonstrated by case in point (3): the GNU license. But I feel compelled, again, to digress just a little. Perhaps the best known adage about copyright law is that it protects expressions, but not ideas. Indeed, some of the landmark cases involving copyrights on computer programs turned on the question of whether programs are copyrightable at all under 17 USC 102. A fairly lucid explanation of the difference between "ideas", which are not copyrightable, and "expressions", which are, may be found in fn3 of the "Microlaw" column, by Richard Stern, in the August '83 issue of IEEE Micro (p 92). Using a well known play by Shakespeare as an example, Stern explains how any work can be thought of in varying degrees of abstraction. Thus, Romeo and Juliet can be described as a story about two young lovers who get in trouble because of a family dispute. A series of increasingly more specific descriptions may be imagined, culminating in a verbatim statement, for any given work. At the very abstract end, many such descriptions might be applied to many different works-- consider a description of West Side Story. If the point at which the descriptions of two works converge is very abstract (and that's about as formally as you can state it), the works have only an "idea" in common. But if a common description is very close to the exact statement of the earlier of two works, the later work is said to copy the "expression" of, or be "substantially similar" to, the first. What's the point of all this, you ask? Copying is not the issue-- we want to know about "use", right? Well, I read the compiler license, and it seems to be pretty careful about not saying you can't distribute code you compile using GNU CC without subjecting it to the license restrictions. The only glaring error in the license as a legal document is that it purports to "automatically terminate" your rights to use GNU CC if you violate the the restrictions on copying and distribution. This clause can't be enforced, because the owner of a copyright doesn't have an exclusive right (ie, the right to exclude others) to use the work. A copyright only allows you to keep others from copying, making derivative works, or distributing copies, (see 17 USC 106, 109). In his Feb. '83 "Microlaw" column, Stern describes an analagous situation. Some software proprietors require their customers to pay royalties on their software on a per use basis, but such payments can be compelled only on the basis of a signed agreement. If you get a copy of the software without signing an agreement-- whether legally or not-- you're free to use it as you please. You just can't copy it or make derivative works from it or distribute copies of it without permission from the copyright owner. In case there's any doubt, the object code produced by a complier is not a "compilation" or a "derivative work" in the sense those terms are used sections 101, 103 and 106(2) of 17 USC. So the question becomes, as one network user has described it, under just what conditions does "code contamination" occur? (I like that term!) It's a lot like the idea/ expression dichotomy. At what point does linking to proprietary library files cease to be mere "use" and start qualifying as the creation of a derivative work? Based on 17 USC 107, I think the argument could be made that since "fair use" is not infringement, it represents the boundary we're looking for here. Interestingly, the circumstances here make factors (1) and (4) of section 107 irrelevant, or at least relevant only in a peculiar way. But factor (3) suggests a bright line test (of course, without saying exactly where to draw the line. Offhand, I would guess that if more than about 40% of the linked code comprised copyrighted library routines, it's a derivative work; less than, say, 5%-- fair use. In between, who knows?) By now I hope most of you realize that there's an easy way to sell your object code produced by GNU CC without giving up your source. Just don't link it at all-- give your customer a copy of GNU CC, with whatever library routines he needs, and then (in a separate transaction, if you're overly cautious) give him (or sell him, for whatever price you can get) the compiled but unlinked object code, and let him link it himself. If a derivative work is produced, it won't be you that produced it, so you don't have to give him the source code. Ironically, your customer won't be able to distribute the linked code at all without running afoul of the GNU license, because he doesn't have your source code to provide to his distributees. Even if you wanted to distribute the linked code yourself, there's still a good argument you can't be compelled to give up your source code. Note that there are actually three copyrights involved: (1) the one on GNU CC, which is clearly subject to the GNU license; (2) the copyright on the linked file which is derived from the GNU CC library routines, and probably, as such, subject to the GNU license; and (3) the copyright on the source code. Clearly, the linked code derives from the source code. Further, 17 USC 103 makes clear that the copyright on such underlying work is not affected by its incorporation in a derivative work. Nor can the GNU license automatically effect a transfer of ownership (see 17 USC 204(a)), since it wasn't signed by the user of the software. (An automatic license, maybe. I could only guess how a court would decide.) Before I close, I'll just throw out one more thought regarding the car leasing analogy suggested by another network user. I guess in some sense, leasing a car instead of buying it is like having a copy of a copyrighted work without owning the copyright. But even if you buy a car, you don't get any of the rights of associated patents (if there are any covering the car. Actually, purchase of a patented item implies the right to use it, much the same as legally acquiring a copy of a copyrighted work implies the right, under 17 USC 109(a), to distribute that copy. Note, however, that no implied license to use the copy of a copyrighted work is necessary, since, as discussed above, copyrights do not restrict use. Patents do.) 17 USC 202 may clarify some confusion in this regard. I sincerely agree with most of the sentiment expressed in the GNU CC license. In particular, I despise the apparent motive of many drafters of copyright notices and licenses to mislead the public as to what their rights really are. But it sure looks to me like whoever authored the GNU CC license wants people to believe that use of copyrighted material can be restricted; and that object code is a "derivative work" of a software compiler, in the sense that term is used in the copyright law. And I don't think it's just a misunderstanding of copyright law on that author's part. For those of you who haven't junked this article yet, lest you give too much weight to the appeal of my arguments, I offer this comment by Oliver Wendell Holmes (from The Common Law): "The life of the law is not logic, but experience." Appendix: Exerpts from Title 17, United States Code Sec. 101. Definitions As used in this title, the following terms and their variant forms mean the following: ... A "collective work" is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A "compilation" is a work formed by the collection and assem- bling of preexisting materials or of data that are selected, coordi- nated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works. "Copies" are material objects ... in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object ... in which the work is first fixed. ... A work is "created" when it is fixed in a copy for the first time... A "derivative work" is a work based on 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". A "device", "machine", or "process" is one now known or later developed. ... A work is "fixed" in a tangible medium of expression when its embodiment in a copy ..., by or under authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.... The terms "including" and "such as" are illustrative and not limitative. ... "Literary works" are works ... expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, films, tapes, disks, or cards, in which they are embodied. ... "Publication" is the distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies ... to a group of persons for purposes of further distribution ... constitutes publication.... ... A "transfer of copyright ownership" is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license. ... Sec. 102. Subject matter of copyright: In general (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be percieved, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; .... (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Sec. 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. 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. ... Sec. 106. Exclusive rights in copyrighted works Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies...; (2) to prepare derivative works based on the copyrighted work; (3) to distribute copies ... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending; ... Sec. 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. ... Sec. 109. Limitations on exclusive rights: Effect of transfer of particular copy... (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy... lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.... ... ... Sec. 202. Ownership of copyright as distinct from ownership of material object Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy... in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor in the absence of an agreement, does transfer of ownership or of any exclusive rights under a copyright convey property rights in any material object. ... Sec. 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 of memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent. ... ... Sec. 401. Notice of copyright: Visually perceptible copies (a) General Requirement.-- Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section shall be placed on all publicly distributed copies from which the work can be percieved, either directly or with the aid of a machine or device. (b) Form Of Notice.-- The notice appearing on the copies shall consist of the following three elements: (1) the symbol ... (the letter C in a circle), or the word "Copy- right", or the abbreviation "Copr."; and (2) the year of first publication of the work; in the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient.... (3) the name of the owner of copyright of the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. ... Sec. 405. Notice of copyright: Omission of notice (a) Effect Of Omission On Copyright.-- The omission of the copyright notice prescribed by sections 401 through 403 from copies... publicly distributed does not invalidate the copyright in a work if-- (1) the notice has been omitted from no more than a relatively small number of copies... distributed to the public; or (2) registration for the work has been made before or has been made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies... that are distributed in the United States after the omission has been discovered; or (3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner's authorization of the public distribution of copies..., they bear the prescribed notice. ... ...