* Added Dan changes and improved formatting
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@ -11,6 +11,7 @@
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% FILTER_PDF: \input{generate-pdf-file}
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% FILTER_HTML: \input{generate-html-file}
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\input{one-inch-margins}
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\usepackage{enumerate}
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%\setlength\parskip{0.7em}
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%\setlength\parindent{0pt}
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@ -598,12 +599,12 @@ creation of this vibrant commercial and non-commercial Free Software
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economy.
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%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
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\chapter{Copying, Modifying and Redistributing}
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\chapter{Running Software And Verbatim Copying}
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|
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This chapter begins the deep discussion of the details of the terms of
|
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GPL\@. In this chapter, we consider the core terms: GPL \S\S 0--3. These
|
||||
are the sections of the GPL that fundamentally define the legal details of
|
||||
how software freedom is respected.
|
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GPL\@. In this chapter, we consider the first two sections: GPL \S\S
|
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0--2. These are the straightforward sections of the GPL that define the
|
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simplest rights that the user receives.
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|
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\section{GPL \S 0: Freedom to Run}
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\label{GPLs0}
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|
@ -712,6 +713,340 @@ provide the warranty protection that the GPL disclaims as an additional
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service for a fee. (See Section~\ref{Business Models} for more discussion
|
||||
on making a profit from Free Software redistribution.)
|
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|
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%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
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\chapter{Derivative Works: Statute and Case Law}
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We digress for this chapter from our discussion of GPL's exact text to
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consider the matter of derivative works --- a concept that we must
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understand fully before considering \SS 2--3 of GPL\@. GPL, and Free
|
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Software licensing in general, relies critically on the concept of
|
||||
``derivative work'' since software that is ``independent,'' (i.e., not
|
||||
``derivative'') of free software need not abide by the terms of the
|
||||
applicable Free Software license. As much is required by \S 106 of the
|
||||
Copyright Act, 17 U.S.C. \S 106 (2002), and admitted by Free Software
|
||||
licenses, such as the GPL, which (as we have seen) states in \S 0 that ``a
|
||||
'work based on the Program' means either the Program or any derivative
|
||||
work under copyright law.'' It is being a derivative work of Free Software
|
||||
that triggers the necessity to comply with the terms of the Free Software
|
||||
license under which the original work is distributed. Therefore, one is
|
||||
left to ask, just what is a ``derivative work?'' The answer to that
|
||||
question differs depending on which court is being asked.
|
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|
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The analysis in this chapter sets forth the differing definitions of
|
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derivative work by Circuit. The broadest and most established definition
|
||||
of derivative work for software is the abstraction, filtration, and
|
||||
comparison test (``the AFC test'') as created and developed by the Second
|
||||
Circuit. Some Circuits, including the Ninth Circuit and the First Circuit,
|
||||
have either adopted narrower versions of the AFC test or have expressly
|
||||
rejected the AFC test in favor of a narrower standard. Further, several
|
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other Circuits have yet to adopt any definition of derivative work for
|
||||
software.
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|
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As an introductory matter, it is important to note that literal copying of
|
||||
a significant portion of source code is not always sufficient to establish
|
||||
that a second work is a derivative work of an original
|
||||
program. Conversely, a second work can be a derivative work of an original
|
||||
program even though absolutely no copying of the literal source code of
|
||||
the original program has been made. This is the case because copyright
|
||||
protection does not always extend to all portions of a program’s code,
|
||||
while, at the same time, it can extend beyond the literal code of a
|
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program to its non-literal aspects, such as its architecture, structure,
|
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sequence, organization, operational modules, and computer-user interface.
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|
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\section{The Copyright Act}
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|
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The copyright act is of little, if any, help in determining the definition
|
||||
of a derivative work of software. However, the applicable provisions do
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||||
provide some, albeit quite cursory, guidance. Section 101 of the Copyright
|
||||
Act sets forth the following definitions:
|
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|
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A ``computer program'' is a set of statements or instructions to be used
|
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directly or indirectly in a computer in order to bring about a certain
|
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result.
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|
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A ``derivative work'' is a work based upon one or more preexisting works,
|
||||
such as a translation, musical arrangement, dramatization,
|
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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''.
|
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|
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These are the only provisions in the Copyright Act relevant to the
|
||||
determination of what constitutes a derivative work of a computer
|
||||
program. Another provision of the Copyright Act that is also relevant to
|
||||
the definition of derivative work is \S 102(b), which reads as follows:
|
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|
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\begin{quotation}
|
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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.
|
||||
\end{quotation}
|
||||
|
||||
Therefore, before a court can ask whether one program is a derivative work
|
||||
of another program, it must be careful not to extend copyright protection
|
||||
to any ideas, procedures, processes, systems, methods of operation,
|
||||
concepts, principles, or discoveries contained in the original program. It
|
||||
is the implementation of this requirement to ``strip out'' unprotectable
|
||||
elements that serves as the most frequent issue over which courts
|
||||
disagree.
|
||||
|
||||
\section{Abstraction, Filtration, Comparison Test}
|
||||
|
||||
As mentioned above, the AFC test for determining whether a computer
|
||||
program is a derivative work of an earlier program was created by the
|
||||
Second Circuit and has since been adopted in the Fifth, Tenth, and
|
||||
Eleventh Circuits. Computer Associates Intl., Inc. v. Altai, Inc., 982
|
||||
F.2d 693 (2nd Cir. 1992); Engineering Dynamics, Inc. v. Structural
|
||||
Software, Inc., 26 F.3d 1335 (5th Cir. 1994); Kepner-Tregoe,
|
||||
Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994); Gates
|
||||
Rubber Co. v. Bando Chem. Indust., Ltd., 9 F.3d 823 (10th Cir. 1993);
|
||||
Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997); 5 Bateman
|
||||
v. Mnemonics,Inc., 79 F.3d 1532 (11th Cir. 1996); and, Mitek Holdings,
|
||||
Inc. v. Arce Engineering Co., Inc., 89 F.3d 1548 (11th Cir. 1996).
|
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|
||||
Under the AFC test, a court first abstracts from the original program its
|
||||
constituent structural parts. Then, the court filters from those
|
||||
structural parts all unprotectable portions, including incorporated ideas,
|
||||
expression that is necessarily incidental to those ideas, and elements
|
||||
that are taken from the public domain. Finally, the court compares any and
|
||||
all remaining kernels of creative expression to the structure of the
|
||||
second program to determine whether the software programs at issue are
|
||||
substantially similar so as to warrant a finding that one is the
|
||||
derivative work of the other.
|
||||
|
||||
Often, the courts that apply the AFC test will perform a quick initial
|
||||
comparison between the entirety of the two programs at issue in order to
|
||||
help determine whether one is a derivative work of the other. Such an
|
||||
holistic comparison, although not a substitute for the full application of
|
||||
the AFC test, sometimes reveals a pattern of copying that is not otherwise
|
||||
obvious from the application of the AFC test when, as discussed below,
|
||||
only certain components of the original program are compared to the second
|
||||
program. If such a pattern is revealed by the quick initial comparison,
|
||||
the court is more likely to conclude that the second work is indeed a
|
||||
derivative of the original.
|
||||
|
||||
\subsection{Abstraction}
|
||||
|
||||
The first step courts perform under the AFC test is separation of the
|
||||
work’s ideas from its expression. In a process akin to reverse
|
||||
engineering, the courts dissect the original program to isolate each level
|
||||
of abstraction contained within it. Courts have stated that the
|
||||
abstractions step is particularly well suited for computer programs
|
||||
because it breaks down software in a way that mirrors the way it is
|
||||
typically created. However, the Courts have also indicated that this step
|
||||
of the AFC test requires substantial guidance from experts, because it is
|
||||
extremely fact and situation specific.
|
||||
|
||||
By way of example, one set of abstraction levels is, in descending order
|
||||
of generality, as follows: the main purpose, system architecture, abstract
|
||||
data types, algorithms and data structures, source code, and object
|
||||
code. As this set of abstraction levels shows, during the abstraction step
|
||||
of the AFC test, the literal elements of the computer program, namely the
|
||||
source and object code, are defined as particular levels of
|
||||
abstraction. Further, the source and object code elements of a program are
|
||||
not the only elements capable of forming the basis for a finding that a
|
||||
second work is a derivative of the program. In some cases, in order to
|
||||
avoid a length factual inquiry by the court, the owner of the copyright in
|
||||
the original work will submit its own list of what it believes to be the
|
||||
protected elements of the original program. In those situations, the court
|
||||
will forgo performing its own abstraction, and proceed to second step of
|
||||
the AFC test.
|
||||
|
||||
\subsection{Filtration}
|
||||
|
||||
The most difficult and controversial part of the AFC test is the second
|
||||
step, which entails the filtration of protectable expression contained in
|
||||
the original program from any unprotectable elements nestled therein. In
|
||||
determining which elements of a program are unprotectable, courts employ a
|
||||
myriad of rules and procedures to sift from a program all the portions
|
||||
that are not eligible for copyright protection.
|
||||
|
||||
First, as set forth in \S 102(b) of the Copyright Act, any and all ideas
|
||||
embodied in program are to be denied copyright protection. However,
|
||||
implementing this rule is not as easy as it first appears. The courts
|
||||
readily recognize the intrinsic difficulty in distinguishing between ideas
|
||||
and expression and that, given the varying nature of computer programs,
|
||||
doing so will be done on an ad hoc basis. The first step of the AFC test,
|
||||
the abstraction, exists precisely to assist in this endeavor by helping
|
||||
the court separate out all the individual elements of the program so that
|
||||
they can be independently analyzed for their expressive nature.
|
||||
|
||||
A second rule applied by the courts in performing the filtration step of
|
||||
the AFC test is the doctrine of merger, which denies copyright protection
|
||||
to expression necessarily incidental to the idea being expressed. The
|
||||
reasoning behind this doctrine is that when there is only one way to
|
||||
express an idea, the idea and the expression merge, meaning that the
|
||||
expression cannot receive copyright protection due to the bar on copyright
|
||||
protection extending to ideas. In applying this doctrine, a court will ask
|
||||
whether the program's use of particular code or structure is necessary for
|
||||
the efficient implementation of a certain function or process. If so, then
|
||||
that particular code or structure is not protected by copyright and, as a
|
||||
result, it is filtered away from the remaining protectable expression.
|
||||
|
||||
A third rule applied by the courts in performing the filtration step of
|
||||
the AFC test is the doctrine of scenes a faire, which denies copyright
|
||||
protection to elements of a computer program that are dictated by external
|
||||
factors. Such external factors can include:
|
||||
|
||||
\begin{enumerate}
|
||||
\renewcommand{\theenumi}{\alph{enumi}}
|
||||
\renewcommand{\labelenumi}{\textup{(\theenumi)}}
|
||||
|
||||
\item the mechanical
|
||||
specifications of the computer on which a particular program is intended
|
||||
to operate;
|
||||
|
||||
\item compatibility requirements of other programs with which a
|
||||
program is designed to operate in conjunction;
|
||||
|
||||
\item computer manufacturers'
|
||||
design standards;
|
||||
|
||||
\item demands of the industry being serviced; and
|
||||
|
||||
widely accepted programming practices within the computer industry.
|
||||
|
||||
\end{enumerate}
|
||||
|
||||
Any code or structure of a program that was shaped predominantly in
|
||||
response to these factors is filtered out and not protected by
|
||||
copyright. Lastly, elements of a computer program are also to be filtered
|
||||
out if they were taken from the public domain or fail to have sufficient
|
||||
originality to merit copyright protection.
|
||||
|
||||
Portions of the source or object code of a computer program are rarely
|
||||
filtered out as unprotectable elements. However, some distinct parts of
|
||||
source and object code have been found unprotectable. For example,
|
||||
constant s, the invariable integers comprising part of formulas used to
|
||||
perform calculations in a program, are unprotectable. Further, although
|
||||
common errors found in two programs can provide strong evidence of
|
||||
copying, they are not afforded any copyright protection over and above the
|
||||
protection given to the expression containing them.
|
||||
|
||||
\subsection{Comparison}
|
||||
|
||||
The third and final step of the AFC test entails a comparison of the
|
||||
original program's remaining protectable expression to a second
|
||||
program. The issue will be whether any of the protected expression is
|
||||
copied in the second program and, if so, what relative importance the
|
||||
copied portion has with respect to the original program overall. The
|
||||
ultimate inquiry is whether there is ``substantial'' similarity between
|
||||
the protected elements of the original program and the potentially
|
||||
derivative work. The courts admit that this process is primarily
|
||||
qualitative rather than quantitative and is performed on a case-by-case
|
||||
basis. In essence, the comparison is an ad hoc determination of whether
|
||||
the protectable elements of the original program that are contained in the
|
||||
second work are significant or important parts of the original program. If
|
||||
so, then the second work is a derivative work of the first. If, however,
|
||||
the amount of protectable elements copied in the second work are so small
|
||||
as to be de minimis, then the second work is not a derivative work of the
|
||||
original.
|
||||
|
||||
\section{Analytic Dissection Test}
|
||||
|
||||
The Ninth Circuit has adopted the analytic dissection test to determine
|
||||
whether one program is a derivative work of another. Apple Computer,
|
||||
Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994). The analytic
|
||||
dissection test first considers whether there are substantial similarities
|
||||
in both the ideas and expressions of the two works at issue. Once the
|
||||
similar features are identified, analytic dissection is used to determine
|
||||
whether any of those similar features are protected by copyright. This
|
||||
step is the same as the filtration step in the AFC test. After identifying
|
||||
the copyrightable similar features of the works, the court then decides
|
||||
whether those features are entitled to ``broad'' or ``thin''
|
||||
protection. ``Thin'' protection is given to non-copyrightable facts or
|
||||
ideas that are combined in a way that affords copyright protection only
|
||||
from their alignment and presentation, while ``broad'' protection is given
|
||||
to copyrightable expression itself. Depending on the degree of protection
|
||||
afforded, the court then sets the appropriate standard for a subjective
|
||||
comparison of the works to determine whether, as a whole, they are
|
||||
sufficiently similar to support a finding that one is a derivative work of
|
||||
the other. ``Thin'' protection requires the second work be virtually
|
||||
identical in order to be held a derivative work of an original, while
|
||||
``broad'' protection requires only a ``substantial similarity.''
|
||||
|
||||
\section{No Protection for ``Methods of Operation''}
|
||||
|
||||
The First Circuit expressly rejected the AFC test and, instead, takes a
|
||||
much narrower view of the meaning of derivative work for software. The
|
||||
First Circuit holds that ``method of operation,'' as used in \S 102(b) of
|
||||
the Copyright Act, refers to the means by which users operate
|
||||
computers. Lotus Development Corp. v. Borland Int’l., Inc., 49 F.3d 807
|
||||
(1st Cir. 1995). More specifically, the court held that a menu command
|
||||
hierarchy for a computer program was uncopyrightable because it did not
|
||||
merely explain and present the program’s functional capabilities to the
|
||||
user, but also served as a method by which the program was operated and
|
||||
controlled. As a result, under the First Circuit’s test, literal copying
|
||||
of a menu command hierarchy, or any other ``method of operation,'' can not
|
||||
form the basis for a determination that one work is a derivative of
|
||||
another. It is also reasonable to expect that the First Circuit will read
|
||||
the unprotectable elements set forth in \S 102(b) broadly, and, as such,
|
||||
promulgate a definition of derivative work that is much narrower than that
|
||||
which exists under the AFC test.
|
||||
|
||||
\section{No Test Yet Adopted}
|
||||
|
||||
Several circuits, including most notably the Fourth and Seventh, have yet
|
||||
to declare their definition of derivative work and whether or not the AFC,
|
||||
Analytic Dissection, or some other test best fits their interpretation of
|
||||
copyright law. Therefore, uncertainty exists with respect to determining
|
||||
the extent to which a software program is a derivative work of another in
|
||||
those circuits. However, one may presume that they would give deference to
|
||||
the AFC test since it is by far the majority rule amongst those circuits
|
||||
that have a standard for defining a software derivative work.
|
||||
|
||||
\section{Cases Applying Software Derivative Work Analysis}
|
||||
|
||||
In the preeminent case regarding the definition of a derivative work for
|
||||
software, Computer Associates v. Altai, the plaintiff alleged that the its
|
||||
program, Adapter, which was used to handle the differences in operating
|
||||
system calls and services, was infringed by the defendant's competitive
|
||||
program, Oscar. About 30 percent of Oscar was literally the same code as
|
||||
that in Adapter. After the suit began, the defendant rewrote those
|
||||
portions of Oscar that contained Adapter code in order to produce a new
|
||||
version of Oscar that was functionally competitive with Adapter, without
|
||||
have any literal copies of its code. Feeling slighted still, the
|
||||
plaintiff alleged that even the second version of Oscar, despite having no
|
||||
literally copied code, also infringed its copyrights. In addressing that
|
||||
question, the Second Circuit promulgated the AFC test.
|
||||
|
||||
In abstracting the various levels of the program, the court noted a
|
||||
similarity between the two programs' parameter lists and macros. However,
|
||||
following the filtration step of the AFC test, only a handful of the lists
|
||||
and macros were protectable under copyright law because they were either
|
||||
in the public domain or required by functional demands on the
|
||||
program. With respect to the handful of parameter lists and macros that
|
||||
did qualify for copyright protection, after performing the comparison step
|
||||
of the AFC test, it was reasonable for the district court to conclude that
|
||||
they did not warrant a finding of infringement given their relative minor
|
||||
contribution to the program as a whole. Likewise, the similarity between
|
||||
the organizational charts of the two programs was not substantial enough
|
||||
to support a finding of infringement because they were too simple and
|
||||
obvious to contain any original expression.
|
||||
|
||||
Perhaps not surprisingly, there have been few cases involving a highly
|
||||
detailed software derivative work analysis. Most often, cases involve
|
||||
clearer basis for decision, including frequent bad faith on the part of
|
||||
the defendant or over aggressiveness on the part of the plaintiff.
|
||||
However, no cases involving free software licensing have ever gone to
|
||||
court. As free software becomes an ever increasingly important part of
|
||||
the economy, it remains to be seen whether or not battle lines will be
|
||||
drawn over whether particular programs infringe the rights of free
|
||||
software developers or whether the entire community, including industry,
|
||||
adopts norms avoiding such risk.
|
||||
|
||||
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
|
||||
|
||||
\chapter{Modified Source and Binary Distribution}
|
||||
|
||||
In this chapter, we discuss the two core sections that define the rights
|
||||
and obligations for those who modify, improve, and/or redistribute GPL'd
|
||||
software. These sections, \SS 2--3, define the central core rights and
|
||||
requirements of GPL\@.
|
||||
|
||||
\section{GPL \S 2: Share and Share Alike}
|
||||
|
||||
For many, this is where the ``magic'' happens that defends software
|
||||
|
@ -1073,6 +1408,125 @@ prepared to honor all incoming source code requests. For this and the
|
|||
many other additional necessary complications under \S\S 3(b--c), it is
|
||||
only rarely a better option than complying via \S 3(a).
|
||||
|
||||
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
|
||||
\chapter{The Implied Patent Grant in GPL}
|
||||
|
||||
We digress again briefly from our section-by-section consideration of GPL
|
||||
to consider the interaction between the terms of GPL and patent law. The
|
||||
GPL, despite being silent with respect to patents, actually confers on its
|
||||
licensees more rights to a licensor's patents than those licenses that
|
||||
purport to address the issue. This is the case because patent law, under
|
||||
the doctrine of implied license, gives to each distribute of a patented
|
||||
article a license from the distributor to practice any patent claims owned
|
||||
or held by the distributor that cover the distributed article. The
|
||||
implied license also extends to any patent claims owned or held by the
|
||||
distributor that cover ``reasonably contemplated uses'' of the patented
|
||||
article. To quote the Federal Circuit Court of Appeals, the highest court
|
||||
for patent cases other than the Supreme Court:
|
||||
|
||||
\begin{quotation}
|
||||
Generally, when a seller sells a product without restriction, it in
|
||||
effect promises the purchaser that in exchange for the price paid, it will
|
||||
not interfere with the purchaser's full enjoyment of the product
|
||||
purchased. The buyer has an implied license under any patents of the
|
||||
seller that dominate the product or any uses of the product to which the
|
||||
parties might reasonably contemplate the product will be put.
|
||||
\end{quotation}
|
||||
Hewlett-Packard Co. v. Repeat-O-Type Stencil Mfg. Corp., Inc., 123 F.3d
|
||||
1445 (Fed. Cir. 1997).
|
||||
|
||||
Of course, free software is licensed, not sold, and there are indeed
|
||||
restrictions placed on the licensee, but those differences are not likely
|
||||
to prevent the application of the implied license doctrine to free
|
||||
software, because software licensed under the GPL grants the licensee the
|
||||
right to make, use, and sell the software, each of which are exclusive
|
||||
rights of a patent holder. Therefore, although the GPL does not expressly
|
||||
grant the licensee the right to do those things under any patents the
|
||||
licensor may have that cover the software or its reasonably contemplated
|
||||
uses, by licensing the software under the GPL, the distributor impliedly
|
||||
licenses those patents to the GPL licensee with respect to the GPL
|
||||
licensed software.
|
||||
|
||||
An interesting issue regarding this implied patent license of GPL'd
|
||||
software is what would be considered ``uses of the [software] to which the
|
||||
parties might reasonably contemplate the product will be put.'' A clever
|
||||
advocate may argue that the implied license granted by GPL is larger in
|
||||
scope than the express license in other free software licenses with
|
||||
express patent grants, in that, the patent license clause of many of those
|
||||
licenses are specifically limited to the patent claims covered by the code
|
||||
as licensed by the patentee.
|
||||
|
||||
To the contrary, GPL's implied patent license grants the GPL licensee a
|
||||
patent license to do much more than just that because the GPL licensee,
|
||||
under the doctrine of implied patent license, is free to practice any
|
||||
patent claims held by the licensor that cover ``reasonably contemplated
|
||||
uses'' of the GPL'd code, which may very well include creation and
|
||||
distribution of derivative works since the GPL's terms, under which the
|
||||
patented code is distributed, expressly permits such activity.
|
||||
|
||||
Further supporting this result is the Federal Circuit's pronouncement that
|
||||
the recipient of a patented article has, not only an implied license to
|
||||
make, use, and sell the article, but also an implied patent license to
|
||||
repair the article to enable it to function properly. Bottom Line Mgmt.,
|
||||
Inc. v. Pan Man, Inc., 228 F.3d 1352 (Fed. Cir. 2000). Additionally, the
|
||||
Federal Circuit extended that rule to include any future recipients of the
|
||||
patented article, not just the direct recipient from the distributor.
|
||||
This theory comports well with the idea of free software, whereby software
|
||||
is distributed amongst many entities within the community for the purpose
|
||||
of constant evolution and improvement. In this way, the law of implied
|
||||
patent license used by the GPL ensures that the community mutually
|
||||
benefits from the licensing of patents to any single community member.
|
||||
|
||||
Note that simply because GPL'd software has an implied patent license does
|
||||
not mean that any patents held by a distributor of GPL'd code become
|
||||
worthless. To the contrary, the patents are still valid and enforceable
|
||||
against either:
|
||||
|
||||
\begin{enumerate}
|
||||
\renewcommand{\theenumi}{\alph{enumi}}
|
||||
\renewcommand{\labelenumi}{\textup{(\theenumi)}}
|
||||
|
||||
\item any software other than that licensed under the GPL by the patent
|
||||
holder, and
|
||||
|
||||
\item any party that does not comply with the GPL
|
||||
with respect to the licensed software.
|
||||
\end{enumerate}
|
||||
|
||||
\newcommand{\compB}{$\mathcal{B}$}
|
||||
\newcommand{\compA}{$\mathcal{A}$}
|
||||
|
||||
For example, if Company \compA has a patent on advanced web browsing, but
|
||||
also licenses a web browsing software program under the GPL, then it
|
||||
cannot assert the patent against any party that takes a license to its
|
||||
program under the GPL. However, if a party uses that program without
|
||||
complying with the GPL, then Company \compA can assert, not just copyright
|
||||
infringement claims against the non-GPL-compliant party, but also
|
||||
infringement of the patent, because the implied patent license only
|
||||
extends to use of the software in accordance with the GPL. Further, if
|
||||
Company \compB distributes a competitive advanced web browsing program,
|
||||
Company \compA is free to assert its patent against any user or
|
||||
distributor of that product. It is irrelevant whether Company \compB's
|
||||
program is distributed under the GPL, as Company \compB can not grant
|
||||
implied licenses to Company \compA's patent.
|
||||
|
||||
This result also reassures companies that they need not fear loosing their
|
||||
proprietary value in patents to competitors through the GPL implied patent
|
||||
license, as only those competitors who adopt and comply with the GPL's
|
||||
terms can benefit from the implied patent license. To continue the
|
||||
example above, Company \compB does not receive a free ride on Company
|
||||
\compA's patent, as Company \compB has not licensed-in and then
|
||||
redistributed Company A's advanced web browser under the GPL. If Company
|
||||
\compB does do that, however, Company \compA still has not lost
|
||||
competitive advantage against Company \compB, as Company \compB must then,
|
||||
when it re-distributes Company \compA's program, grant an implied license
|
||||
to any of its patents that cover the program. Further, if Company \compB
|
||||
relicenses an improved version of Company A's program, it must do so under
|
||||
the GPL, meaning that any patents it holds that cover the improved version
|
||||
are impliedly licensed to any licensee. As such, the only way Company
|
||||
\compB can benefit from Company \compA's implied patent license, is if it,
|
||||
itself, distributes Company \compA's software program and grants an
|
||||
implied patent license to any of its patents that cover that program.
|
||||
|
||||
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
|
||||
\chapter{Defending Freedom On Many Fronts}
|
||||
|
@ -1290,22 +1744,37 @@ the parties. Therefore, to make such language ``conspicuous'', people
|
|||
started placing it in bold or capitalizing the entire text. It now seems
|
||||
to be voodoo tradition of warranty disclaimer writing.
|
||||
|
||||
Some have argued the GPL is unenforceable in some jurisdictions because
|
||||
its disclaimer of warranties is impermissibly broad. However, \S 11
|
||||
contains a jurisdictional savings provision, which states that it is to be
|
||||
interpreted only as broadly as allowed by applicable law. Such a
|
||||
provision ensures that both it, and the entire GPL, is enforceable in any
|
||||
jurisdiction, regardless of any particular law regarding the
|
||||
permissibility of certain warranty disclaimers.
|
||||
|
||||
Finally, one important point to remember when reading \S 11 is that \S 1
|
||||
permits the sale of warranty as an additional service, which \S 11
|
||||
affirms.
|
||||
permits the sale of warranty as an additional service, which \S 11 affirms.
|
||||
|
||||
\section{GPL, \S 12: Limitation of Liability}
|
||||
\label{GPLs12}
|
||||
|
||||
There are many types of warranties, and in some jurisdictions some of them
|
||||
cannot be disclaimed. Therefore, usually agreements will have both a
|
||||
warranty disclaimer and a limitation of liability, as we have in \S 12.
|
||||
\S 11 thus gets rid of all implied warranties that can legally be
|
||||
warranty disclaimer and a limitation of liability, as we have in \S 12. \S
|
||||
11 thus gets rid of all implied warranties that can legally be
|
||||
disavowed. \S 12, in turn, limits the liability of the actor for any
|
||||
warranties that cannot legally be disclaimed in a particular jurisdiction.
|
||||
|
||||
So ends the terms and conditions of the GNU General Public License.
|
||||
Again, some have argued the GPL is unenforceable in some jurisdictions
|
||||
because its limitation of liability is impermissibly broad. However, \S
|
||||
12, just like its sister, \S 11, contains a jurisdictional savings
|
||||
provision, which states that it is to be interpreted only as broadly as
|
||||
allowed by applicable law. As stated above, such a provision ensures that
|
||||
both \S 12, and the entire GPL, is enforceable in any jurisdiction,
|
||||
regardless of any particular law regarding the permissibility of limiting
|
||||
liability.
|
||||
|
||||
So ends the terms and conditions of the GNU General Public License.
|
||||
|
||||
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
|
||||
\chapter{The Lesser GPL}
|
||||
|
@ -1988,11 +2457,9 @@ modification follow.
|
|||
\end{center}
|
||||
|
||||
|
||||
%\renewcommand{\theenumi}{\alpha{enumi}}
|
||||
\begin{enumerate}
|
||||
|
||||
\addtocounter{enumi}{-1}
|
||||
|
||||
\item
|
||||
|
||||
This License applies to any program or other work which contains a notice
|
||||
|
@ -2933,4 +3400,6 @@ That's all there is to it!
|
|||
% LocalWords: proprietarize redistributors sublicense yyyy Gnomovision EULAs
|
||||
% LocalWords: Yoyodyne FrontPage improvers Berne copyrightable Stallman's GPLs
|
||||
% LocalWords: Lessig Lessig's UCITA pre PDAs CDs reshifts GPL's Gentoo glibc
|
||||
% LocalWords: TrollTech administrivia LGPL's MontaVista OpenTV
|
||||
% LocalWords: TrollTech administrivia LGPL's MontaVista OpenTV Mitek Arce
|
||||
% LocalWords: unprotectable protectable Unfreedonia chipset CodeSourcery
|
||||
% LocalWords: impermissibly
|
||||
|
|
Loading…
Reference in a new issue