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Re: GPL traitor !

From: Hyman Rosen
Subject: Re: GPL traitor !
Date: Fri, 15 May 2009 15:40:34 -0400
User-agent: Thunderbird (Windows/20090302)

Alan Mackenzie wrote:
> I'm not carrying on with this sort of evasive and inane form of "debate".

To recap: <>

A computer program is defined by US copyright law as
    "a set of statements or instructions to be used directly or indirectly
     in a computer in order to bring about a certain result"

It is my opinion that this definition does not mean that the set of statements
in the definition is capable of bringing about the result by itself, without the
assistance of other software with which it interoperates. Furthermore, it is my
opinion that the size of the computer program has no bearing on the ability to
copyright it. Its is my opinion that a program such as
    bool is_prime(int n){for(int i=2;i<n;++i)if(!(i%n))return 0; return 1;}
is copyrightable despite the fact that it is only one line long and does
nothing unless invoked by other software. My opinion is borne out by the fact
that there are numerous copyrighted software products that do nothing without
being invoked from other programs, including libraries whose rights are owned
by the FSF and distributed under the GPL or LGPL.

It is my opinion that the ability to copyright a computer program rests not
on its size, but on two things. First, it must be, as the law states, an
    "original work(s) of authorship fixed in any tangible medium of expression"
and second, it can be infringed upon only when the infringing work passes the
abstraction/filtration/comparison test
so that elements which are present because they are necessary for efficiency
or interoperability, or because they represent the only way of doing something
do not infringe.

A collective work is defined by copyright law as
    "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"

It is my opinion that a work is not a collective work until it has actually
been assembled into a collective work. Instructions on how to produce a
collective work are not themselves a collective work.

Copyright law says
    (f) Reverse Engineering.—
    (1) Notwithstanding the provisions of sub-section (a)(1)(A), a person who 
    lawfully obtained the right to use a copy of a computer program may 
    a technological measure that effectively controls access to a particular 
    of that program for the sole purpose of identifying and analyzing those 
    of the program that are necessary to achieve interoperability of an 
    created computer program with other programs, and that have not previously 
    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
    (4) For purposes of this subsection, the term “interoperability” means the 
    of computer programs to exchange information, and of such programs mutually 
to use
    the information which has been exchanged.

Copyright law also says
    § 117 · Limitations on exclusive rights: Computer programs
    (a) Making of Additional Copy or Adaptation by Owner of Copy.—
    Notwithstanding the provisions of section 106, it is not an infringement 
for the
    owner of a copy of a computer program to make or authorize the making of 
    copy or adaptation of that computer program provided: (1) that such a new 
copy or
    adaptation is created as an essential step in the utilization of the 
    program in conjunction with a machine and that it is used in no other manner

The court in Krause vs. Titleserv talks about this:
    Given the ambiguity of the text, we turn to the legislative history of § 
    for guidance. As discussed above, Congress enacted the language proposed in 
    CONTU Report largely without alteration. The House Report simply states that
    § 117(a) “embodies the recommendation” of CONTU.
    The report states:
        Thus, a right to make those changes necessary to enable the use for
        which it was both sold and purchased should be provided. The conversion
        of a program from one higher-level language to another to facilitate use
        would fall within this right, as would the right to add features to the
        program that were not present at the time of rightful acquisition.

Combining these three readings, it is my opinion that it is permissible to read
a computer program so as to determine its method of operation, then to write a
separate program (without copying from the other) which will interoperate with
the other program when executed, then to distribute this new separate program
under any terms chosen by its author, then to modify the other program in order
to have the other program interoperate with the new one (but not to distribute
the modified program), all without requiring permission from the copyright 
of the other program.

It is my opinion that if the separate program is combined by a translator with
other works into a statically bound single file, the resulting file is a
collective work and requires the permission of the copyright holder of each of
the bound components to copy and distribute.

It is my opinion that if the separate program is distributed on a distribution
medium along with the program with which it is to interoperate, in such a way
as to make clear that the components are to be used together, there is a 
argument to be made that this too is a collective work.

It is my opinion that if the separate work is distributed along with 
on how to obtain the other program with which it is to interoperate and how to
create the combined program such that the interoperation is enabled, this does
not constitute a collective work and requires no permission from the copyright
holder of the other program.

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