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Re: GPL traitor !

From: Hyman Rosen
Subject: Re: GPL traitor !
Date: Wed, 13 May 2009 11:04:16 -0400
User-agent: Thunderbird (Windows/20090302)

Alan Mackenzie wrote:
It is free from the work of others unless it contains pieces of
the other work copied into it.

Copyright covers not only the literal copying of a work, but also its
use, including adaptation.  (If you disagree with that, go and correct
the wikipedia page on copyright, please.)

Copyright law is very careful to disallow itself from being used to
prevent interoperability of computer programs.

<> - Page 239
    (f) Reverse Engineering.—
    (1) Notwithstanding the provisions of sub-section (a)(1)(A),
    a person who has lawfully obtained the right to use a copy of
    a computer program may circumvent a technological measure that
    effectively controls access to a particular portion of that
    program for the sole purpose of identifying and analyzing those
    elements of the program that are necessary to achieve
    interoperability of an independently created computer program
    with other programs, and that have not previously been readily
    available to the person engaging in the circumvention, to the
    extent any such acts of identification and analysis do not
    constitute infringement under this title.
    (2) Notwithstanding the provisions of subsections (a)(2) and (b),
    a person may develop and employ technological means to circumvent
    a technological measure, or to circumvent protection afforded by
    a technological measure, in order to enable the identification and
    analysis under paragraph (1), or for the purpose of enabling
    interoperability of an independently created computer program with
    other programs, if such means are necessary to achieve such
    interoperability, to the extent that doing so does not constitute
    infringement under this title.
    (3) The information acquired through the acts permitted under
    paragraph (1), and the means permitted under paragraph (2), may be
    made available to others if the person referred to in paragraph (1)
    or (2), as the case may be, provides such information or means
    solely for the purpose of enabling interoperability of an
    independently created computer program with other programs, and to
    the extent that doing so does not constitute infringement under this
    title or violate applicable law other than this section.
    (4) For purposes of this subsection, the term “interoperability”
    means the ability of computer programs to exchange information,
    and of such programs mutually to use the information which has been

(i) Anybody may extract the guts of any computer program and combine them
  with his own stuff without regard to the copyright of the original, on
  the pretext of "interoperability".

Why do you persist in conflating copying with independent creation?
If by "extract the guts" you mean copy code, then that causes the new
work to fall under the copyright of the old. If by "extract the guts"
you mean understand how the other program works so that you can write
new code to interoperate with it, I invite you to study the reverse
engineering section of the law above.

(ii) That copyright law has no concept of a complete work (such as a novel
  or a computer program); that in considering a putative derived work,
  it ignores the nature, essence and context of the work, taking into
  account only the superficial literal copying of text from the original.

That is fact; courts have found that computer programs are not novels,
and have no narrative structure to be followed. Only literal copying or
transformation violates copyrights of computer programs.

(iii) That when you create a new work based on an existing one, say by
  bolting a new code generator onto an existing compiler, this isn't a
  work "derived from the original", and you do not need permission from
  the compiler's copyright holder.

The bolted-on portion is not a derivative work in the sense of copyright
law, because it is not a significant auctorial transformation of an existing
work. If it does not contain copied portions of the other work, it does not
violate the copyright of that work. Copyright is about text. Computer programs
do not have themes or characters, and interoperability is explicitly protected
by the very law you believe would prevent it.

taking you seriously at face value

I am completely serious and intend to be taken at face value.
I am not trolling, I am describing how you are incorrect.

This is inconsistent with your assertion that copyright law has no notion
of a coherent program.  Without such a notion, the idea of a "separate"
program is meaningless.

No. A separate program is a program which is not part of the work
being copyrighted. It's quite simple. I write a computer program
and distribute it. You wish to claim that this program violates the
copyright of some other computer program. You must then demonstrate
how my program does this, by showing that my program contains copies
of text from the other program, or is a proscribed transformation of
it. You cannot claim that my program violates copyright law because
it can interoperate with the other program, because copyright law
explicitly protects interoperability, as shown above.

Note that Apple is currently asserting copyright (of its operating system)
to prevent interoperability with a separate "program" (hardware/software
made and distributed by Psystar).

Anyone can claim anything. When the case is over, we will see what the
courts say.

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