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Re: GPLv3 comedy unfolding -- InformationWeek: "Pick Your Open Source Po

From: Lee Hollaar
Subject: Re: GPLv3 comedy unfolding -- InformationWeek: "Pick Your Open Source Poison: Microsoft's Patent Claims Or GPLv3"
Date: Sat, 9 Jun 2007 20:24:05 -0600 (MDT)

In article <f4fj1m$lp8$> 
(Rahul Dhesi) writes:
> (Lee Hollaar) writes:
>>In the 108th Congress, there was an effort (H.R. 2613) to extend that
>>to works produced under government contracts.  "Copyright protection
>>under this title is not available for any work produced pursuant to
>>scientific research substantially funded by the Federal Government ..."
>>The idea behind the legislation was to make medical research reports
>>more generally available.
>>It is interesting to ponder what that might do to GPLed software written
>>in universities under federal grants and contracts.  But to the best of
>>my knowledge, there was no recognition of that problem by any of the
>>"free" software people.
>Suppose the software produced pursuant to the research mentioned above
>were to be the Linux kernel 1.0, or gcc 1.0. And suppose we don't get a
>usable release until 2.x, some years later, and those usable releases
>contain numerous contributions all made under the GPL.  Would the linux
>kernel 2.x and gcc 2.x have no valid copyright?

Assuming United States copyright law, as a derivative work any later
version of an existing work has all the underlying copyrights as well
as a copyright in the changes that form the new version.  If the
underlying work is in the public domain, then the copyright is only
to the changes.

As for them, 17 U.s.C. 103(b) states:
    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.

>I think the answer is that they would. The 1.0 release would be in the
>public domain. After software in the public domain is greatly revised
>and improved, the result *as a practical matter* gets the full benefit
>of copyright law.  Of course, somebody could easily extract out the
>un-copyrighted portions and use them, but that only gives them back, at
>best, pieces of the 1.0 release, which they already had.  So it seems to
>me that the GPL would not in any *practical* way be defeated as to the
>2.x release.

Well, if there were anything of value in the 1.0 release, it could be
freely (in the real, not FSF sense) used without regard to the licensing
of the 2.0 release, since it (according to the hypothetical) is in the
public domain.

>There is probably an analogy here to court of appeal published opinions,
>which are supposed to be in the public domain, but their official page
>numbers are copyrighted (except in one or maybe two circuits). This
>small addition is enough to make the result, *as a practical matter*,
>get the full benefit of copyright law, and allow the holders of the
>copyrights in page numbers to charge hefty fees.

Not much of an analogy.  The reason why the page numbers added by the
publisher are so important is that they are needed to cite the case
to a court.  And that made it difficult for a competitor to also
publish the opinions in a way that lawyers needed -- with the page
breaks and numbers indicated.

But the thing I was thinking about if the House bill had passed was that
any contribution by a government contractor (like a university research
project) would be in the public domain.  How might that affect the GPL,
and if it did, would it mean the loss of a great source of GPLed works?

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