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@ -11,6 +11,7 @@
% FILTER_PDF: \input{generate-pdf-file}
% FILTER_HTML: \input{generate-html-file}
\input{one-inch-margins}
\usepackage{enumerate}
%\setlength\parskip{0.7em}
%\setlength\parindent{0pt}
@ -598,12 +599,12 @@ creation of this vibrant commercial and non-commercial Free Software
economy.
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
\chapter{Copying, Modifying and Redistributing}
\chapter{Running Software And Verbatim Copying}
This chapter begins the deep discussion of the details of the terms of
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.
GPL\@. In this chapter, we consider the first two sections: GPL \S\S
0--2. These are the straightforward sections of the GPL that define the
simplest rights that the user receives.
\section{GPL \S 0: Freedom to Run}
\label{GPLs0}
@ -712,6 +713,340 @@ provide the warranty protection that the GPL disclaims as an additional
service for a fee. (See Section~\ref{Business Models} for more discussion
on making a profit from Free Software redistribution.)
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
\chapter{Derivative Works: Statute and Case Law}
We digress for this chapter from our discussion of GPL's exact text to
consider the matter of derivative works --- a concept that we must
understand fully before considering \SS 2--3 of GPL\@. GPL, and Free
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.
The analysis in this chapter sets forth the differing definitions of
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
other Circuits have yet to adopt any definition of derivative work for
software.
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
program to its non-literal aspects, such as its architecture, structure,
sequence, organization, operational modules, and computer-user interface.
\section{The Copyright Act}
The copyright act is of little, if any, help in determining the definition
of a derivative work of software. However, the applicable provisions do
provide some, albeit quite cursory, guidance. Section 101 of the Copyright
Act sets forth the following definitions:
A ``computer program'' is a set of statements or instructions to be used
directly or indirectly in a computer in order to bring about a certain
result.
A ``derivative work'' is a work based upon 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''.
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:
\begin{quotation}
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).
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