Thursday, 2015-01-22

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hugoroydJust noticed a formatting problem in
hugoroydafter " Thus, to say that this condition is any way unreasonable is simply ludicrous."09:28
hugoroydthe two following paragraphs are nearly identical, looks like a copy/paste or editing minor oversight09:28
hugoroydAlso, I'm puzzled by the sentence: "Thus, far from attempting to extend copyleft beyond the scope of copyright, GPL explicitly limits the scope of copyleft to the scope of copyright."09:28
yrkhugoroyd: what about that sentence, specifically?09:30
hugoroydit is clear to me that the fact that the GPL in some cases does extend to separate and independent parts means that the GPL explicitly goes further than the scope of copyright -- how can a copyright holder have power over separate and independent works?09:30
yrkhugoroyd: no, the gpl is based on copyright law and does not extend beyond it09:30
hugoroydyrk: clearly the GPL writes that it "extends" to these parts09:31
yrkhugoroyd: if a part is independent, the gpl does not apply to it09:31
yrkhugoroyd: this is explicitly stated in section 5 of gplv309:31
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yrk"A compilation of a covered work with other separate and independent09:31
yrkworks, which are not by their nature extensions of the covered work, ..."09:31
hugoroyd"But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it."$09:31
yrkhugoroyd: all of this is predicated on whether the two parts would be considered derivative under copyright law09:32
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hugoroydyrk i disagree09:32
enysthugoroyd: it "extends" to them only in the  measure the GPLed parts are tightly coupled with the independent parts09:32
yrkhugoroyd: the gpl faq covers this as well09:32
hugoroydGPL clearly says this is not about derivatives only09:32
hugoroyd"the intent is to exercise the right to control the distribution of derivative or collective works based on the Program."09:32
hugoroydyrk: where?09:33
hugoroydthis is a copyright issue, not a gpl interpretation issue09:33
hugoroydbut anyway, please fix the guide as pointed out for the repetitive parfagraphs09:33
hugoroydyrk: this is another issue09:33
hugoroydthe gpl makes a distinciton between different kinds of compilations09:34
yrkhugoroyd: yes, two kinds: larger works vs. mere aggregation09:34
hugoroydthe "aggregate" definition is only for a subset of compilations09:34
hugoroydyrk: 'larger work' doesn't mean much09:35
yrkhugoroyd: larger work == the combination of two works such that copyright permission is required for their distribution09:35
hugoroydyrk: the faq entry does not cover this issue09:35
hugoroydyrk: by the way, this analysis is directrly contradicted by the recent decision versata v ameriprise09:36
enysthugoroyd: look at it this way: a larger work can contain parts derived from GPLed code and parts written independently, all interacting together to form a work that itself is derivative of the GPLed code.09:37
yrkhugoroyd: there are only two options: either a work is a derivative in the copyright sense and needs to be distributed under the terms of the GNU GPL if combined with software licensed under the GNU GPL, or it isn't.09:37
hugoroyd(and by 'this analysis' i mean the analysis that gpl operates only within the scope of copyright=09:37
enysthugoroyd: link to the decision?09:37
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hugoroydyrk: no, there are way more cases in the GPL than only what you describe, also, the terms you use are clear in copyright: combining could mean it's about compilation (i.e. derivative works and independent and separate works combined in a "whole")09:38
yrkhugoroyd: there are no other options. you are free to argue that other laws apply in court, but that's between you and the judge; it doesn't imply that the gpl is broader than the body of law it is based on09:39
hugoroydare clear/are not clear09:39
hugoroydyrk: gpl doesn't oeprate in a vacuum, multiple laws can apply09:39
yrkhugoroyd: I am not aware of a middle ground between being a derivative and not (in the copyright sense); a judge would have to decide one or the other09:40
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hugoroydyrk: either something is a derivative work or not; if it is not a derivative work it is "separate and independent" as the GPL says09:41
yrkhugoroyd: yes09:41
hugoroydyrk: if the GPL was only concerned with derivative works, it would be impossible for it to impose conditions on works with are separate and independent, right?09:41
yrkhugoroyd: yes09:42
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hugoroydlet me requote the GPL then09:42
hugoroyd" "But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.""09:42
hugoroyd"the intent is to exercise the right to control the distribution of derivative or collective works based on the Program."09:42
yrkso far so good09:43
hugoroydthe "same sections" refer to "'independent and separate parts"09:43
hugoroydwhich is consitent with the intent to also apply to "collective works" (the us copyright law name for compilations)09:43
yrkhugoroyd: you aren't parsing that correctly09:43
hugoroydand not simply to derivative works09:43
hugoroyd"A state-law claim is preempted by the Copyright Act if the claim is within the subject matter of copyright law and the claim’s elements are the same as the elements of a copyright infringement claim. The court held that the GPL’s copyleft provision imposed an obligation over and above what copyright law requires—"09:44
enysthugoroyd: thanks for the link. That the claim wasnt preempted was surprising, but it has nothing to do with the issue you're discussing now09:44
hugoroydhow exactly? the issue i'm discussing is that the guide claims:09:45
hugoroyd" GPL explicitly limits the scope of copyleft to the scope of copyright.""09:45
hugoroydit cannot be more about the issue09:45
enystlets take an example to see how those independent parts look like, and what the text means09:46
hugoroydenyst: no examples are needed, the two sentences are cleary contradicting each other09:46
hugoroydon the one hand "limited to the scope of copyright" on the other hand "over and above what copyright law requires"09:47
hugoroydthe scope of copyright does not extend to independent works, but the GPL does extend to these works in some cases (which is a GOOD thing)09:48
enystlets say I make an editor, it parses different formats, and I license and distribute it under GPL. You write a little library parsing .docx, independently from my editor.09:49
hugoroydi can distribute them under proprietary terms, and then no one will be able to make a "collective work" that includes your library and mine because the GPL (Your license) would require to extend over My copyright09:50
hugoroydwhich it can't09:50
enystthen yrk finds them, and writes some code integrating your parser in my editor. They create a derivative work of my editor, which contains your library, such that both 'parts' interact and provide another, larger work (new editor)09:50
hugoroydunless I combine them myself, but then also need to license the ibrary as GPL09:50
enystwait. Lets say you wrote your library, licensed it as BSD and distributed it. Then Yrk *can* make his editor with it, right?09:51
hugoroydyes, because BSD and GPL are compatible09:51
enystokay. Does the GPL extend to your library in his work? in what sense?09:52
hugoroydso the GPL can "extend" to a BSD library with no problem09:52
hugoroydyes the GPL extends to that09:52
hugoroyd"But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it."$09:52
enystbut the work was and is independent as a part. Exactly09:53
hugoroydexaclty what?09:53
hugoroydi don't understand "but the work was and is independent as a part. "09:54
enystthe new editor is derivative of mine. But your library didn't "become" derivative of mine. It's still ... well, independently written and independent code. But as long as Yrk distributes integrated with my editor, it extends to it09:54
enystyour library was and is "independent"09:54
yrkperhaps "extends" is what is confusing hugoroyd. it means "the library has licensing terms which permit its distribution in combination with the editor under the terms of the GNU GPL"09:54
hugoroydyes it is09:54
hugoroydyrk: what are you quoting here?09:55
yrkalso, it might be confusing to parse the difference between what "combination" means which code is linked/copied and "combination" when it is used to describe placing multiple independent libraries together09:56
hugoroydyrk: you realise that you're using a word, combination, which is not in the GPL?09:57
enysthugoroyd: the GPL "extends" to your library, but that does that mean it goes beyond the scope of copyright?09:57
hugoroydenyst: it clearly extends beyond what a copyright holder can do simply by virtue of copyright law09:58
hugoroyda copyright holder cannot control how independent works are made and distributed right?09:58
hugoroydby definition, independent works have nothing to do with his own work09:59
enysthugoroyd: I can set the terms of distributing my editor, and say that I want derivative works of it (such as yrk's new editor) to contain only compatible parts.09:59
enystdo you agree?09:59
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hugoroydyou have to precise your question in legal terms or in terms of the GPL otherwise it is not relevant10:01
hugoroydwhat does "contain" means, is the result really a "derivative work" or is it a "compilation" (in the US, "collective work")10:01
hugoroydthe difference beeing that one can contain independent parts10:02
hugoroydindependent meaning no copyright infringement over the original work10:02
enysthugoroyd: well, that's a good question. What are the concepts you'd use for yrk's editor case?10:06
enystI'd say that clearly yrk's editor is a derivative work, and your library is an independent work. As copyright holder of the editor, I don't set terms over your library. I do set terms over derivative works.10:08
hugoroydenyst: the derivative work + the independent work = a compilation based on the derivative work (which the GPL wants "as a whole" to be also licensed under the GPL including the separate and independent parts=10:09
enysthugoroyd: ah. But the derivative work is yrk's editor, the program he distributes. It's *not* only his code.10:10
enystyrk's editor = derivative work. Not yrk's editor = derivative work + independent work10:11
enystthe "larger" derivative work "contains" his code, my code, and your code.10:11
hugoroydand so?10:13
enystyou said > the derivative work + the independent work = a compilation based on the derivative work (which the GPL wants "as a whole" to be also licensed under the GPL including the separate and independent parts)10:14
hugoroydand? sorry but I hardly see a point here10:15
enystat a level, your phrase seems correct. But derivative work + independent work is not only a compilation. If I look at yrk's editor as a whole, it is a derivative work.10:17
hugoroydenyst: you can call this a compilation or a derivative work (although this may or may not be correct under copyright law) the point remains that my library is not a derivative work to begin with, but the GPL wants to extend to it. If I only provide my libary under proprietary terms, you will not be able to use it for your GPL'd program; if you want to use it10:19
hugoroydyou need to make *me* release the library under a compatible license because the GPL will extend to it10:19
hugoroydif the GPL was only operating in the scope of copyright, it would never extend outside of the common copyright interests in a program of the various contributing authors10:20
enysthugoroyd: Yes. Indeed. The GPL extends to it only in a sense: it doesn't allow yrk to create his derivative works with proprietary libraries10:20
enystGPL is operating in the scope of copyright.10:21
hugoroyd"the intent is to exercise the right to control the distribution of derivative or collective works based on the Program."10:21
yrkhugoroyd: _based on the Program_10:21
hugoroydyrk: yes, that's for making a distinction between aggregate or not10:22
enystThe sense in which it extends to your library is only indirect, if you want. And it doesn't affect it other than in the measure yrk integrates it.10:22
yrkwhat enyst said10:22
hugoroydenyst: you got this wrong, imagine I was the one making the combination of your GPL program with my independently written library10:23
hugoroydi wouldn't be able to distribute the whole without licensing the independent part as GPL too10:24
hugoroydalthough,; by definition, that part cannot be a derivative work of the GPL'd program10:24
hugoroydif it was a derivative, I could only license it under GPL10:24
enystWait. In our case, now you create another editor, derivative work of mine, with your independently written library?10:24
hugoroydbut as it's not a derivative, I can also distribute it under propreitary terms10:25
yrkhugoroyd: you don't change the licensing terms of your software when you distribute it in combination with software licensed under the terms of the GNU GPL10:25
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hugoroydI distribute a program which "as a whole" contains your GPL's derivative work and an independent work -- GPL makes the independent work GPL too although it cannot be a derivative of the original GPL work10:26
enysthugoroyd: it seems to me that you use "it" or other words with different meanings10:26
hugoroydright, certainly10:26
yrkhugoroyd: no! it doesn't make an independent work GPL, it merely says that the whole most be distributed under the terms of the GPL; each independent part retains its license10:27
yrkhugoroyd: if all of the parts are GPL compatible, they permit this kind of distribution; but still none of them change license10:27
hugoroydyrk: what you're saying is that i can combine proprietary libraries with GPL libraries10:27
hugoroydthis is wrong10:27
yrkhugoroyd: proprietary isn't gpl-compatible, so no, that isn't what I'm saying10:28
enysthugoroyd: GPL doesn't change the license of the independent work. It's the same case like yrk's library actually. You license "as a whole" (argh this confusing expression! but it's correct) as GPL, but you don't strictly have to license your library as only GPL10:28
hugoroydagain, the license clearly says it "extends to parts" even if independent10:28
hugoroydthis is written in the license, i've quoted this part multiple times10:28
hugoroydyrk: what you said is directly contradicted by the text of the gpl10:29
enystI know. It does "extend" in the softer sense that it doesn't allow such parts to be proprietary licensed when, and only when, they are part of a larger derivative work of the GPLed program10:29
hugoroydwhich is why you find the conclusion to diverve from what you believ10:29
yrkhugoroyd: nope, you are just misunderstanding the license and then quoting parts of it along with the forceful word "clearly", as if it strengthens your argument10:29
hugoroydmeanwhile you never quote the license and actually write stuff directly contradicted by the text of the license :-)10:30
enysthugoroyd: would you agree that "extends to parts" has a different meaning that "the code in such parts must be GPL and only GPL"?10:31
hugoroydenyst: if you want to call that "soft extension", i don't mind ;-)10:31
yrkhugoroyd: yes, I know you believe that10:31
hugoroydenyst: i never said it must be only GPL, i said exactly the opposite10:31
hugoroydsee: 16:24 <hugoroyd> but as it's not a derivative, I can also distribute it under propreitary terms10:32
enysthugoroyd: I'm trying to say that it extends to your library only in the measure that your library is integrated in larger works (which themselves, as a whole, are derivative works). That means, it extends to your library in the measure MY copyright allows me to.10:32
enyst"but as it's not a derivative, I can also distribute it under propreitary terms". Exactly. My copyright wouldn't allow me to say otherwise. And I don;t.10:33
hugoroyd"But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it."10:34
enystYou can distribute your library under proprietary terms all you want. Your act doesn't come within the scope my copyright control, until and unless someone makes a derivative work based on my work (+which as a whole is derivative of mine). Then I set terms for that big derivative work.10:35
hugoroydenyst: YES!10:36
hugoroydso you set terms outside the scope of your copyright control!10:36
hugoroydthe GPL is not only about derivative w orks10:36
hugoroyd"distribution of derivative or collective works"10:36
enystHey, why? I just said I set terms on the "larger work" which is derivative work of mine.10:37
hugoroydenyst: the "larger work" can also be a collective work / compilation10:38
enyst(by the way, my copyright definitely would allow me to control all collective works. I don't think GPL uses all its scope,)10:38
hugoroydenyst: no!10:38
yrkhugoroyd: this isn't productive, and won't result in a modification of, so I suggest you drop it. personally, I'm dropping it right now to lower the noise on the channel10:38
hugoroydyour copyright cannot extend to independent parts of a collective work10:38
hugoroydyrk: please modify copyleft . org for the issue i showed at the bginning10:38
hugoroyd15:27 <hugoroyd> Just noticed a formatting problem in
hugoroyd15:27 <hugoroyd> after " Thus, to say that this condition is any way unreasonable is simply ludicrous."10:38
hugoroyd15:28 <hugoroyd> the two following paragraphs are nearly identical, looks like a copy/paste or editing minor oversight10:38
enysthugoroyd: indeed, but my copyright would allow me to forbid copying of my work in collective works.10:38
hugoroydenyst: of course10:39
hugoroydnever said otherwise10:39
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enysthugoroyd: it seems when I say "that big derivative work", you think "ah, but it contains independent parts so look it extends beyond copyright", while I say "it *is* a derivative work, and as such of course it comes within the scope of my copyright"10:41
enystyour premise and my premise are both correct (it contains indep. parts and it *is* itself, the big thing, a derivative work).10:43
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hugoroyd your copyright cannot extend to independent works, i.e. under copyright power of another person with no contractual obligation to you, right?10:45
hugoroydremove "contracutla obligation" :)10:45
hugoroydi'm skipping a step here10:45
enystmy copyright can extend to forbid all derivative works. Thus, I can, within the bounds of my copyright, to describe those derivative works I allow.10:46
hugoroydenyst: please let me make the point, do you agree with that sentence i just wrote?10:46
hugoroyd(enyst of  course you can control derivative works because distributing these works is infringing your copyright, I never said otherwise)10:47
enystmmm. My copyright is a right against all world.10:47
hugoroydenyst: yes but it's only linked to your "work"10:48
enystOnly linked to my work, yes.10:48
hugoroydand so if you consider 2 independent works with 2 independent right holders: you agree that none of these have copyright power over the other, right?10:48
enyst(meaning to derivative works of my work too)10:48
hugoroydenyst: you don't agree?10:50
enystif I consider 2 indep. works with 2 indep. right holders, they both have (c) power over each other, because they both forbid the other any acts on their respective works. They don't have "power" over the other's work10:50
hugoroydso now, imagine that 1 of these 2 independent works is GPL10:51
hugoroydwe have to options:l10:51
hugoroyd1. the GPL operates strictly within the copyright prerogatives and thus the GPL does not change the legal situation on these 2 works between these 2 persons10:52
hugoroydthat's your interpretation10:52
hugoroydor, my interpretation:10:52
hugoroyd2. the GPL is actually able to extend over these copyright prerogatives and, in some cases[*], it will change the legal situation of these 2 works and it can oblige the author of the non-GPL work to make it available under the terms of teh GPL as part of a program (the "big derivative" as you call it, but i'd call it a "compilation" based on the program --10:54
hugoroydbut that's not that much relevant here)10:54
hugoroyd[*] the "some" cases is the distinction between a compilation based on the Gpl'd program and a compilation which is a mere aggregate10:54
enystI don't agree with 2.10:55
hugoroyd""But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.""10:55
enystIt doesn't oblige THE AUTHOR of the non-GPL independent work to do anything.10:55
hugoroydof course it does10:55
hugoroydin the  case where that author is in the clause described in the gpl quoted here10:56
enystThat's not the author of the non-GPLed indep. work. The "you" in this phrase is the third author of a derivative work based on my work.10:56
hugoroydenyst: that third author does not have the possibility to make the independent work licensed under the GPL, only the author can set the terms for his copyright10:56
enyst(or recipients from this 3rd status)10:57
enystwhat bothers you here? that 3rd author can look around and figure out what works he can use to build their work10:57
hugoroydenyst: the "You" has two options: either he can use the independent work because it's a GPL compatible license, or if it's not a compatible license he cannot distribute the whole at all, he must make the author of the independent part under a  compatible license for the GPL10:58
hugoroydenyst: nothing bothers me here10:58
enystyour last phrase doesn't seem grammatically correct?10:58
hugoroydhe must make the author of the independent part release the work under a  compatible license for the GPL11:01
hugoroydsorry, went too fast11:01
enystgot it. well he also has the option to rewrite that work he can't reuse together with the GPLed work etc11:01
hugoroydenyst: yes of course11:02
hugoroydthat work could still be independent, he would need to make it GPL-compatible11:02
hugoroydalthough it's probable that the work would be more dependent on the GPL code to begin with in that context11:02
enyst(side note: I really think it's preferable if we can use a testcase with named works and/or authors, so we can know what we're talking about. Say like our editor before. So we don't keep saying "it" where the poor "it" can be any of two or three or more things.)11:04
pehjotaThe independent work is licensed under its own terms, /and/ the combination (derivative work) is licensed under the GPL.  So using the editor example (GPL-licensed editor, 2-or-3-clause-BSD-licensed DOCX library, both combined by a third author into a DOCX-parsing editor), the resulting combined work is licensed under the GPL /and/ the BSD license (for one part of the whole).  (And this is possible of11:05
pehjotacourse because the GPL and the 2- and 3-clause BSD licenses are compatible.)  The DOCX library isn't relicensed, and the author of that library has no licensing obligations of any kind due to the combination of their work and the GPL-licensed editor.  The third author (and any downstream redistributors) simply distributes under the terms of both licenses.11:05
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hugoroydpehjota: if you apply the GPL to a work, you need to respect the obligations like giving the source code -- that's possible with a BSD license which has no contradicting obligation -- but that's not possible with non-GPL compatible licensed works11:06
pehjotaThe GPL doesn't establish any licensing requirements for the DOCX library.  It only says that the editor can only be combined with other code as long as the GPL (possibly in addition to other licenses) applies to the resulting combined work.11:07
pehjotaRight, you can't combine a GPL-licensed work with a work licensed under GPL-incompatible terms.11:07
hugoroydif the GPL applies to the resulting work, you need to be able to fullfil your obligations for the entire resulting work, like providing source code, right?11:08
hugoroydif the entire resulting work contains a proprietary library, you have a problem, right?11:08
hugoroydthe proprietary terms would directly contradict your obligations by the GPL11:08
pehjotaCombining a GPL-licensed editor with a 4-clause-BSD-licensed DOCX library (or a proprietary DOCX library) is not legally possible.11:09
pehjotaIndeed, the proprietary terms and the GPL are incompatible and the combination can't be distributed.11:09
hugoroydit is, if you make the docx library also available under the terms of the GPL11:09
hugoroydwhich is something the GPL would make you do if you make a resulting work containing a GPL library11:10
hugoroydin addition to your proprietary docx library11:10
pehjotaIf the author of the DOCX library allows it to be used under GPL-compatible terms, then it can be combined with a GPL-licensed editor.  If the DOCX library is only available under GPL-incompatible (e.g. proprietary) terms, then it can't be combined as such.11:10
hugoroydyes, and?11:11
hugoroydi never said otherwise :=11:11
pehjotaA third author making such a combination doesn't impose any requirements on the DOCX library author.  Instead, the third author is simply violating the GPL and infringing the editor's author's copyrights.11:11
hugoroydand so?11:12
hugoroydwhy do you want to bring a third author?11:12
pehjotaAre you assuming that the third author and the DOCX library author are the same?11:12
hugoroydit can be a situation with only 2 authors11:12
hugoroydof course!11:12
pehjota(That wan't the original example, but we can examine that situation if you'd like.)11:12
hugoroydlot of people would like to combine their proprietary library with GPL stuff11:13
hugoroydpehjota: i know, i saidthat example wasn't relevant11:13
pehjotaOK, then the DOCX library author wants to combine their library with the GPL-licensed editor.  They can only do this if they license their library under GPL-compatible terms.  This isn't anything outside the scope of copyright.  The GPL just says that a derivative work based upon the editor can only be prepared and distributed if the resulting combined work is licensed under the GPL (thus the code11:17
pehjotacombined with the editor must be used under GPL-compatible terms).11:17
enystThe second author has to abide by the terms of the first author, when they're making a derivative of the first author's work.11:17
pehjotaThe author has the option of not preparing such a derivative work and not needing to use any particular license for their work.11:17
enystIt is within the scope of copyright of the first author to prevent entirely the second author to make derivative works.11:18
hugoroydenyst: yes but you're not encompassing all the situations in which the GPL applies11:20
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hugoroydyour copyright alone cannot give you a claim in court to make someone else license under the GPL something that is not a derivative work (i.e. an independent work)11:22
hugoroydbut with the GPL, you can still do provided  that the "someone else" had to comply to the GPL (which applies as the license says not only to derivative but also collective works)11:23
hugoroydi.e. as soon as you make a program based on the GPL program, the GPL applies to the originally independent parts too11:24
pehjotaIn a court, you can't necessarily force someone to license their work under the GPL.  If they're found to be infringing, they must either cease distribution (by an injunction) or choose to come into compliance with the GPL (license their work under GPL compatible terms).11:26
enystThe author who wants to copy and distribute both parts together in a tightly interacting new work, has to abide by the terms of the GPL for the new work.11:27
hugoroydpehjota: sure, in court you can enforce a contract by requiring the party to execute in some cases (probably in the US too?) -- not all contract resolution is by way of damages11:29
hugoroydcontract breach remedy i mean11:29
hugoroydenyst: for the new work and to "each and every part regardless of who wrote it" (GPLv2)11:30
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enysthugoroyd: the new work is within the power of the first (c) holder to forbid distribution of. Instead of forbidding all new works, the first author describes which new works they allow and under what conditions.11:32
pehjotaBut the GPL is not a contract, and I'm not talking about breach of contract.  I'm talking about remedying a copyright infringement.  The ways to do that are by injunction (ceasing the infringement by ceasing distribution) or by coming into compliance (ceasing the infringement by distributing with authorization, i.e. a license).11:32
pehjota(There are statutory and actual damages available as well, but those are irrelevant to the point.)11:32
hugoroydpehjota: GPL can be a contract, courts have qualifed it in this way too11:35
enysthugoroyd: I feel you're thinking again that the versata article you linked earlier has anything to do with this "issue" of independent works. It doesn't, or not that I see any clue whatsoever. That's about a work derived from the GPL work directly, with no independent anything11:35
hugoroydactually a lot of GPL cases do not originate with the copyright holder of the GPL program11:35
hugoroydenyst: let me quote the decision, you'll see it's about this11:36
enystI haven't seen the decision the article talks about. What I can guess is that it's all at summary judgement, because all ximpleware cases so far seem to be at that stage.11:37
hugoroyd“the presence of an additional contractual promise, separate and distinct from any rights provided by copyright law meant that a claim to enforce that right is not preempted.”11:37
hugoroydenyst: this is not the ximpleware action11:37
hugoroydit's another action11:38
hugoroydthe court talks about “a contractual promise”11:38
enystI am curious about the non-preemption in that case. I would have definitely thought copyright has to preempt any.11:38
hugoroydenyst: btw in Europe, GPL certainly is contractual11:39
enystWhat was interpreted as additional contractual promise, is part of the contract between a redistributor and their distributee, I guess11:39
hugoroyd"the contract" was the GPL11:40
hugoroydit was about “an affirmative obligation on any license holder to make the code of any derivative work freely available and open source”11:40
hugoroydthat obligation “is separate and distinct from any copyright obligation”11:40
hugoroydi'm not saying the court got everything right11:40
enysthugoroyd: I never said there's no contractual interpretation, even in US some words in the license are interpreted contractually (this is my freehand understanding, grains of salt needed), it's just that we always thought a GPL violation case is a copyright case.11:42
hugoroydenyst: not necessarily11:42
hugoroydin that decision, there are no copyright holders11:43
hugoroydin several decisions involving GPL worldwide there was no copyright holders involved (2 in France)11:43
hugoroydyou can also have a company suing a competitor that does not respect the GPL on grounds of extracontractual claims (like "anticompetitive" behaviour)11:44
hugoroyd"unfair competition"11:44
hugoroydi meant11:45
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enysthugoroyd: do you know by any chance, a link to other documents from this versata case after it went back to state court?12:07
hugoroydhm, no sorry12:11
hugoroydbut if you get them, you can post them here12:11
hugoroydthere are US lawyerse here, they probably followed that more closely12:11
bkuhnWhere is "here"?12:12
bkuhnGenerally speaking, I don't think the Ximpleware v. Versata case is that important, unless of course it gives some weird decision about GPL, which is unlikely in a case that isn't primarily about the GPL.12:14
hugoroydI think he meant versata v ameriprise12:17
enystbkuhn: Ximpleware v. Versata et al is a (c) infringement case, GPL violation case12:17
bkuhnhugoroyd: that one was dismissed.12:18
bkuhnhugoroyd: to answer your earlier question, GPL doesn't intend to go further than copyright scope for sure.  How could it anyway?12:19
hugoroydwhy could it not?12:20
hugoroydit could, if the GPL is not considered to be only a copyright license, but more12:20
bkuhnIts intent is to be a copyright license.  It can't hang requirements on things not governed by copyright.12:20
hugoroydtaht's a matter of legal qualification12:20
bkuhnhugoroyd: anyway, can you offer a merge request to fix the problem you found?12:21
hugoroydbkuhn: ha, i can do that? sure, where's the repo?12:21
hugoroydi can't do it right now, i'm not on my machine, but will do shortly12:22
hugoroydi presume the 2nd paragraph is the one to keep ;)12:22
bkuhnwell, offer what you think is best, I'll look at it and make sure.12:23
bkuhnhugoroyd: BTW, I reread aaronw's blog post and I don't see it having anything to do with the scope of copyleft.12:26
hugoroydit's relevant as to the interpretation that gpl is only a copyright license, or if it is a copyright license and more12:27
bkuhnI think I wrote somewhere in the Guide that it could be used for other purposes, and is.  If it's not in there it should be.12:27
bkuhnBut the intent of GPL is to only be a copyright license.12:28
bkuhnFor example, the classic old example: a distributor places a click-wrap around the GPL.  The GPL then becomes both a clickwrap license (i.e., a normal contract) and the copyright license it already is.12:28
bkuhnThat issue should be covered in the Guide, but it's a side issue.12:28
bkuhn(since the GPL isn't written to be anything more than a copyright license, even if it can be used under other legal regimes too)12:29
bkuhnBut if there's a good place to cover it in the guide, I'd appreciate a merge request at least throwing a commented out FIXME for that.12:30
bkuhnI thought it was covered somewhere, but it may not be12:30
* fontana 's fork of Guide will address confusion on this old issue12:32
bkuhnfontana: I'm not sure why you keep saying you'll do that; it just confuses things.12:33
bkuhnWhy not contribute to this Guide rather than saying you're going to fork it, make a full rewrite.12:33
bkuhnIf you did a full rewrite, I'd probably simply accept it wholesale upstream.12:33
hugoroydfontana: I hope it includes comparative analysis12:33
fontanahugoroyd: comparative analysis of what?12:34
hugoroyd"this old issue"12:34
bkuhnfontana: probably you could write a section for the Guide that dispels the historical fear of "never let GPL be anything but a copyright license"12:36
bkuhnThat would be most helpful.12:36
enystbkuhn: when you say that case was dismissed, do you mean versata v. ameriprise breach of additional contractual promise to provide source to distributees?12:36
bkuhnWhile I don't think GPL intents to be anything other than a copyright license, I think considering it something else isn't the disaster that once was argued.12:36
hugoroydbkuhn: i think it's far from being a disaster12:37
bkuhnenyst: I think there are three separate cases involving these companies. is the one that was dismissed.12:37
bkuhnhugoroyd: Oh, historically, some "scholars" argued that GPL would be harmed if considered a contract.12:37
bkuhnfontana has correctly (IMO) argued that there is no reason GPL can't be considered a contract sometimes and it doesn't negatively impact existing copyright claims.12:38
hugoroydthat's what i think too12:38
bkuhnThe case you mentioned is annoying, but not horrible.12:38
bkuhnI think I'd rather in the USA that federal copyright claims trump a state action when copyright is involved.12:39
enystAh, thank you.12:39
bkuhnWhich is hints at this historical concern that we shouldn't consider it a contract.12:39
fontanathis should have been clarified by Jacobsen v Katzer12:40
hugoroydcould they? is the artistlic license also copyleft? (i don't know)12:40
fontanahugoroyd: this has nothing to do with copyleft vs noncopyleft12:40
bkuhnYeah, the issue is the same.12:40
enysthugoroyd: no, but it's a copyright license, based on (c)12:40
fontanahugoroyd: meme that "GPL is not a contract" is not specific to GPL but applies to any 'normal' free software license12:41
hugoroydfontana: well, it depends what kind of obligations they would be looking at12:41
hugoroydcopyleft licenses certainly bear special obligations that nocopyleft licenses don't have12:41
fontanawell, hard to argue the Artistic License 1.0 is norma12:41
bkuhnIn the case hugoroyd mentioned, I personally think the federal court got confused on the special performance question incorrectly.12:41
fontanahugoroyd: so you think the argument e.g. that "3-clause BSD license is not a contract" makes more sense e.g. in Europe context?12:42
bkuhnOTOH, the federal court is almost saying that the state court *could* order special performance.12:42
bkuhnfontana: again, this is a section you could write for the Guide: explain the special performance question in relation to copyright law and using GPL as a contract. :)12:42
hugoroydfontana: yes12:42
hugoroydhm well, maybe i wrote too fast, let me think :)12:43
fontanabkuhn: I think one of the Rationale Documents for GPLv3 has a footnote where the FSF indicates it does not think specific performance is appropriate remedy for GPL noncompliance :)12:43
bkuhnfontana: I don't think so, at least, I would have left that in if I'd found it when merging the Rationale documents into the Guide.12:43
hugoroydfontana: yes i think it makes more sense12:43
* bkuhn always incorrect calls specific performance "special performance" ;)12:44
bkuhnanyway, fontana, write a section on this, please!12:44
hugoroydfontana: but for Europe it's not that relevant as in lots of countries we don't make a difference between license or contract12:47
fontanahugoroyd: the distinction is not really made in the US either12:47
fontanaAs a cultural matter, many European lawyers involved in FLOSS seem to think there is a distinction12:48
hugoroydmaybe we've been misinformed :-)12:48
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pehjotaThere are many who argue that a copyright license is a contract not to sue.  I personally disagree with that in general for two main reasons: 1. contract law and copyright law are separate laws and copyright law makes provisions for licenses/authorizations without specific need of contract law, and 2. many copyright licenses (e.g. all free software licenses) lack consideration for the licensor.12:54
fontanapehjota: that is another side of the issue. If a copyright license is completely outside of contract then it can be revoked at will12:54
pehjotaI don't object to considering any given license a contract, and certainly a contract can contain a license, but my lay opinion is that not all licenses are contracts.12:54
pehjotafontana: Except if the license states that it is irrevocable, as the GPL does.  Or is my understanding of that wrong?12:56
fontanapehjota: there is a view that GPL and other free software licenses are 'malformed contracts'.12:56
pehjota(Statutory copyright law makes no mention either way of revocability of an authorization.)12:57
hugoroydfontana: malformed contracts? is it like an "offer for contract" where only acceptance is needed to form the contract?12:57
enystactually, pehjota, I think non-exclusive licenses without consideration are considered revocable12:57
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pehjotaenyst: Even if the terms explicitly say that they aren't revocable?12:59
enystI said that wrong. There are some who argue that non-exclusive licenses are revocable if not supported by consideration. Yes13:00
fontanapehjota: merely stating that a license is irrevocable may not be enough to make it irrevocable (under US law)13:09
yrkgroklaw had that "the irrevocable gpl" article, which I've actually shared a couple of times over the years with people writing in to; it's a nice stance to take13:12
pehjotaInteresting.  That could be a rather serious issue, and I know of at least one recent attempt to revoke a free software license.13:12
pehjotaI guess this has yet to be tested in court?13:12
enystI don't find good references right now, just a related issue: Nimmer on (c) argues there's no basis in federal (c) law for consideration-less transfers to be impossible. [irrevocable ofc]. But says no one wants to serve as test case, so they invariably state some 10 bucks. :)13:12
bkuhnThis "a copyright license can't be irrevocable" thing comes up every so often.  I don't think it has much weight.13:12
bkuhnIs there a way we could cover this debate in the Guide?13:12
bkuhnIt's all well and good for us knowledgeable folks to discuss here.13:13
bkuhnI keep broken-record-ing this "write it up for the Guide" because the main thing the Guide is trying to do is get others 'up to speed' on these kinds of discussions.13:13
bkuhnthink about a n00b coming into this channel, they'd be lost, and there is currently no section of the Guide I could point them to so they'd be up to speed and able to come back and discuss.13:13
hugoroydthat does not seem to be strictly relevant to gpl but a general copyright issue though13:15
hugoroydlikewise, some lawyers in France have argued that the GPL is revocable at any time by the author because it does not respect the formalities of certain copyright provisions13:15
hugoroydbut these are usually bold claims from less than knowledgeable on the matter of free software  folks who'd just like to dismiss this whole American thing too quickly13:16
bkuhnWell, it's relevant to copyleft generally, which is what the Guide seeks to cover.13:18
hugoroydhm. But then you'd need to cover any particularity of a body of law somewhere in the world?13:20
enystAs far as I'm concerned, this 'a license is contract not to sue' is just conceptually incorrect. Sue me for what? I have a license. If act within the bounds, you can't say "oh well, you see, I could sue you, it's just that I have this contract I would breach if I sue you...".13:26
bkuhnI think it's useful to discuss.  There's already a footnote about termination under German law:
fontanabkuhn: promissory estoppel is the US doctrine that makes free software licenses irrevocable. It is a contract law doctrine though.13:29
fontanaa license is a promise not to sue13:31
fontanabkuhn: I think the Guide should be expanded to cover non-copyleft :)13:33
bkuhnfontana: when it comprehensively covers all copyleft, I'm open to that.13:34
fontanabkuhn: I mean, to cover quasi-phony copyleft licenses but not noncopyleft seems problematic to me :)13:34
bkuhnwhich quasi-phone copylet license does the Guide currently cover/13:34
fontanabkuhn: none I think, but e.g. what if MPL got covered13:35
bkuhnfontana: They haven't contacted us.  I heard from you that MPL and EPL people were mad at us, but they also haven't shown up to write anything (like the CC BY SA folks have ;)13:37
bkuhnI think karen_ sent Eclipse and Mozilla  Foundations and email to invite them too13:38
bkuhnMPL is a stronger copyleft than, say, GPL + Classpath exception. :)13:38
* enyst stares at MPL being named quasi-phony copyleft13:38
fontanabkuhn: I heard that too - which shows they think of MPL and EPL as legitimately copyleft :)13:38
fontanaenyst: read RMS's 1998 essay on the Netscape Public License13:39
fontanaenyst: RMS implies (IIRC) that NPL was not really copyleft because it was so easily circumventable13:39
enystNPL was weird, though iirc for other reasons13:42
enyst"some users may be confused about it, and might adopt the NPL, thinking that they are obtaining the benefits of copyleft for their software, when that is not the case". That's understandable when one defines copyleft and needs to spread it out. I doubt it is the case today13:46
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jcayis there any good information about how could copyleft and media interact, not hurting nor artists nor users? I mean I understand the 4 basics of copyleft, but how could it work in real life? or should artists only be payed in concerts, exhibitions, cinema etc?17:35
chrissietheresei know nine inch nails released an album under a creative commons license; you may want to look at that17:38
jcayhm, thanks for the hint :)17:39
bkuhnjcay: Have you read the first Part of the Guide, which includes  discussion of how copyleft works with business?17:41
bkuhnIt's software-focused right now, mainly because I haven't merged in mlinksva 's CC BY SA materials yet.17:41
jcayif I understood it right, it encurages use donations or fee per 1.Class product, while 2.Class you can download for free? It could be ported to media too... I guess17:50
jcayor you can charge per developing of need new features, while the code goes open sourced after the deal17:54
bkuhnI don't know what what "1. Class" and "2. Class" "products" are in this context, sorry.17:56
jcayI am also not sure, but I guess it after reading about the "convenience fee"17:58
bkuhnI really have no idea what you're talking about, jcay.18:00
jcayI have seen some artists who let download free mp3 of 64kbps quality and for good quality they demand for a payment18:00
bkuhnoh, yeah, that doesn't relate to copyleft in any specific way18:00
jcaythats the point, i understand it pretty well in theory, used to listen to Stallmans speech and can all the ideas almost by heart, but how it works in real life, especially when we talk about non-free beer, just a free-speech18:06
jcayhe always sais we dont talk about the price and ignores all the consequences18:08
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bkuhnjcay: well, the Guide has a whole section on this.  Granted, the section is currently short, but I recommend you read it and give feedback.18:12
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kunojcay: my personal theory is that consumers or end-users never read (or abide by) the license anyway, so whether it is copyleft or not will not have much effect on your sales numbers.18:39
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jcaykuno:  but what about publishing the source code?18:45
kunojcay: you distribute that along with the product you're selling.18:47
kunoyou could also make it available as a no-cost download, but then you're relying on the traditional free software model of having a community of volunteers help you build that work (whether it is software, music, etc..) and donations from users to fund it.18:50
kuno(because it seems silly for me to purchase something from you when you also make the exact same thing available as a no-cost download on your site :)18:50
jcayyes, thats what I mean18:51
jcayfrom business you roll down to a street begger (not literally) :)18:52
kunojcay: but copyleft doesn't require you to make it available at no cost, you can sell it at whatever price makes business sense to you.  Your customers will be free to share it with whoever they want, for no-cost if they want, but I don't expect that would affect your business unless you were asking too much for it anyway.18:53
jcaydo you mean source code only available with the purchase of the product itself?18:56
jcayhm, it makes sense... but there is a risk, that only one copy will be sold, others will be shared between users18:57
kunosure, but an end-user unwilling to pay for your product will be able to find a pirated copy anyway if your product is popular enough.  end-users don't read nor care about the license, they'll share the product anyway.18:58
jcaypartly yes18:59
kunoanyway, this is all my theory... I don't have a product to test my theory with :)18:59
jcayI guess in real life it depends on the product itself and for a success you would need to combine different ideas and models19:01
kunosadly in the software space businesses who are using a copyleft license tend to abuse it (so-called proprietary relicensing).19:01
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pehjotaAs said above, theoretically, selling copies of free software (i.e. including source code and a license with each purchase) is no different from selling copies of non-free software.  And in practice, this does seem to be true.  Many free software applications are sold in mobile marketplaces, and I know of at least one game developer – Jason Rohrer – who makes a modest living just by selling copies20:33
pehjotaof free games.  Sadly there aren't many more examples, I think because many developers have this same false conception that selling free software is hard or impossible.  I'd like to see that change.  Although OTOH very few non-free programs are successfully sold either; only a few make any significant profit, and only a small handful of companies make anywhere near a majority of their profits by20:33
pehjotaselling copies of software.20:33
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kunopehjota: it's all saas now ofcourse, where I do expect the same to be true.  (if you're selling a subscription to a web app, no-one will care or notice that there will be e.g. an AGPL license + a link to source somewhere in the app after login)20:35
pehjotakuno: In that case though you're selling the service of hosting that software, which is maybe something not everyone would have the time, money, or interest to do themselves.20:42
pehjotaNonetheless that's true, good point.20:43
bkuhnpehjota: would you want to write Jason's story as a case study for the Guide (assuming it's copylefted)?20:53
pehjotabkuhn: Jason disclaims copyright on most of his games, so I guess they're not relevant for the Guide.  Ryzom might be a good case study (the game that failed commercially as non-free software and now thrives in its subscription service after the FSF helped get it liberated, with client and server code licensed under the AGPL and assets under CC BY-SA).21:01
bkuhnYeah, I recall Ryzom thing21:29
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