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--- Begin Message ---

• From: cc-licenses-request AT lists.ibiblio.org
• To: cc-licenses AT lists.ibiblio.org
• Subject: cc-licenses Digest, Vol 5, Issue 10
• Date: Fri, 29 Aug 2003 12:02:29 -0400 (EDT)

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Today's Topics:

1. Re: cc-licenses Digest, Vol 5, Issue 8 (Glenn Otis Brown)

--- Begin Message ---

• From: "Glenn Otis Brown" <glenn AT creativecommons.org>
• To: "Discussion on the Creative Commons license drafts" <cc-licenses AT lists.ibiblio.org>
• Subject: Re: cc-licenses Digest, Vol 5, Issue 8
• Date: Thu, 28 Aug 2003 12:32:36 -0800

Thanks, Carlos. Very interesting . . .

On Wed, 27 Aug 2003 23:56:45 -0700, "Carlos Motta" <cmotta AT stanford.edu>
said:
> FYI
>
> _________
>
> Court Evaluates Meaning of "Derivative Work" in an Open Source License
>
>
> By Laura A. Majerus
>
> The first court case involving the Gnu Public License (GPL) has been
> filed
> in Federal Court in Massachusetts, and all lawyers who counsel clients on
> open source matters should be aware of its existence, even though the
> case
> itself has so far provided little substantive help with open source
> interpretation issues. The case, Progress Software Corp. v. MySQL AB,
> Civil
> Action No. 01-11031 PBS, was filed on June 15, 2001. The plaintiff,
> Progress, is a U.S. software company that signed an interim agreement
> with a
> small Swedish software company, MySQL, to nonexclusively market the MySQL
> software product. The MySQL software had been originally released by
> MySQL
> years earlier under the GPL.
>
> Progress alleged breach of contract, tortious interference with
> third-party
> contracts and relationships, unfair competition and several similar
> business-related torts. Progress also sought declaratory judgment as to
> its
> trademark rights and other rights relating to its sale and distribution
> of
> the MySQL software. MySQL filed a counterclaim alleging, among other
> causes
> of action, trademark infringement, breach of the interim agreement
> between
> the parties and breach of the GPL. The interim agreement provided, among
> other things, that the MySQL software would be released under the GPL.
> This
> provision conforms to the language of the GPL itself, which specifies
> that
> anyone receiving software under the GPL who then releases it must release
> it
> under the GPL.
>
> In an early release, Progress distributed the MySQL software with
> additional
> proprietary software (Gemini) but did not include the source code for the
> Gemini software on its distribution medium. However, Progress did include
> the Gemini source code in a later release. MySQL alleged that the
> proprietary Gemini software was derivative of the MySQL software because
> it
> linked to the MySQL software. This is a key point because the author of
> the
> GPL has stated that linking to GPL'd software turns the linked software
> into
> a derivative work and that all derivative works of GPL'd software must
> also
> be released under the GPL. Thus, GPL'd software "infects" proprietary
> software with which it is linked. The result is that the GPL either bars
> inclusion of GPL'd code in programs that are to be kept as proprietary or
> forces new programs linking to GPL'd software to be released under the
> GPL.
>
> On February 28, 2002, the court granted a preliminary injunction
> enjoining
> Progress from, among other things, sublicensing or distributing the MySQL
> program and from using the MySQL trademark. Progress Software Corp. v.
> MySQL
> AB, 195 F. Supp. 2d 328, 329 (D. Mass.). The court declined to rule on a
> request for summary judgment of the breach of contract under the GPL,
> stating:
>
> MySQL has not demonstrated a substantial likelihood of success on the
> merits or irreparable harm. Affidavits submitted by the parties' experts
> raise a factual dispute concerning whether the Gemini program is a
> derivative or an independent and separate work under GPL, [paragraph] 2.
> After hearing, MySQL seems to have the better argument here, but the
> matter
> is one of fair dispute. Moreover, I am not persuaded that the release of
> the
> Gemini source code in July 2001 didn't cure the breach.
>
> Thus, the court recognized the important issue that will need to be
> resolved
> in a case interpreting the GPL: whether a program linked to GPL'd
> software
> can be considered a derivative work of that software. The court also
> raised
> the question of whether subsequent shipping of source code can cure a
> breach
> of the GPL without permission to continue shipment from either the author
> or
> subsequent distributor of the software.
>
> An interesting side note is an affidavit submitted by MySQL of Professor
> Eben Moglen of Columbia University Law School, who is the lawyer for the
> Free Software Foundation, the group that originated the GPL license. This
> affidavit contains some insights into the author's intent in drafting the
> GPL. In particular, Professor Moglen lists "three primary conditions" of
> the
> GPL, stating that if a company receives software under the GPL and then
> distributes it:
>
> 1) Redistribution must itself occur under GPL and only GPL, with no
> additional license conditions.
>
> 2) Redistribution must include "source code," the human-readable form
> of
> computer programs that allows programmers to understand and modify
> computer
> programs for themselves, as opposed to "object code," which is the
> "machine
> language" version of computer programs that is very difficult for
> programmers to understand or modify.
>
> 3) Redistribution must include a copy of the GPL, so that users are
> aware
> of their rights to use, copy, modify and distribute, and so that anyone
> engaged in redistribution is also aware of the conditions under which
> redistribution is permitted.
>
> These statements will be useful in future cases where GPL
> interpretation
> is at issue.
>
> Professor Moglen further stated that the Free Software Foundation's
> position
> is that failure to comply with the GPL terminates distribution rights of
> the
> person failing to comply until the copyright holder takes affirmative
> action
> to reinstate the rights. Note that this position requires an affirmative
> act
> by the copyright holder to reinstate the right to distribute, not an act
> of
> the person who distributed the software to the breaching party. In her
> order
> granting partial summary judgment, the judge in the Progress Software
> litigation seemed to imply that a breach of the GPL by failure to include
> source code possibly could be "cured" by shipping source code in later
> versions. This view contradicts that of Professor Moglen.
>
> Professor Moglen's affidavit also reiterates that the GPL is based on
> copyright law but reminds us that the GPL requires the author of software
> to
> unilaterally give up certain copyright rights. He suggests that the GPL
> actually subtracts from the usual exclusive rights of the author under
> copyright law, through the granting of unilateral permissions. Under the
> GPL, all persons observing its terms are unilaterally permitted all
> rights
> to use, copy and modify the software. Users who only use the software
> themselves or who modify the software only for their own use have no
> obligations under the GPL. Only persons who distribute have reciprocal
> obligations under the GPL. These include the obligation to release under
> the
> GPL, to include a copy of the GPL and to preserve notices relating to the
> GPL. Thus, the author of the software gives up his rights to control the
> actions of people who receive the software and do not distribute it, and
> these people have a unilateral right to use, copy and modify the
> software.
> Once software is released under the GPL, the releasing party cannot get
> it
> back or halt its use or modification without distribution.
>
> The Progress Software v. MySQL litigation is not over yet. Although the
> court refused to grant summary judgment on the issues involving the GPL,
> it
> is still possible that the GPL breach of contract issue may play a part
> in
> the final decision. If this occurs, practitioners may finally have
> guidance
> as to the validity of the GPL under contract law and whether linking
> software results in a derivative work.
>
> Carlos Motta
> 796, Escondido Rd.
> Rains 14-A
> Stanford, CA
> 94305-7562 USA
> (650) 498.0717
> cmotta AT stanford.edu
> www.cbeji.com.br
> ----- Original Message -----
> From: <cc-licenses-request AT lists.ibiblio.org>
> To: <cc-licenses AT lists.ibiblio.org>
> Sent: Wednesday, August 27, 2003 9:01 AM
> Subject: cc-licenses Digest, Vol 5, Issue 8
>
>
> > Send cc-licenses mailing list submissions to
> > cc-licenses AT lists.ibiblio.org
> >
> > To subscribe or unsubscribe via the World Wide Web, visit
> > http://lists.ibiblio.org/mailman/listinfo/cc-licenses
> > or, via email, send a message with subject or body 'help' to
> > cc-licenses-request AT lists.ibiblio.org
> >
> > You can reach the person managing the list at
> > cc-licenses-owner AT lists.ibiblio.org
> >
> > When replying, please edit your Subject line so it is more specific
> > than "Re: Contents of cc-licenses digest..."
> >
> >
> > Today's Topics:
> >
> > 1. Ethic Software (Lorenzo De Tomasi)
> >
> >
> > ----------------------------------------------------------------------
> >
> > Message: 1
> > Date: Wed, 27 Aug 2003 02:23:30 +0200
> > From: Lorenzo De Tomasi <detomasi.liste AT libero.it>
> > Subject: Ethic Software
> > To: <cc-licenses AT lists.ibiblio.org>
> > Message-ID: <BB71C6A2.A6DE%detomasi.liste AT libero.it>
> > Content-Type: text/plain; charset="US-ASCII"
> >
> > Look at HESSLA license:
> > http://hacktivismo.com/news/modules.php?name=Content&pa=showpage&pid=17
> > I think it's a source for new CC license options.
> >
> > In particular Luca Ferroni (E ferrbsd AT libero.it; W
> > http://www.cs.unibo.it/~fferroni/), thinks that the concept od ethic
> > software is important.
> >
> > You can read here what he thinks :)
> > http://dragas.dyndns.org/~luca/eng/licenza/swetico.php
> > - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
> -
> > However I noticed that making software available to all people means even
> to
> > make it usable by people who approve methods that I reject. Those people
> do
> > not share my vision of the world and moreover use my software against
> ideals
> > for which I fight everyday.
> > So, I thought to propose a license which more or less reflects GPL license
> > and meanwhile protects author's moral right.
> >
> > I propose to limit freedom of code execution for any purpose.
> > That is what Free Software calls Freedom 0.
> >
> > Such limitations I propose, could only involve software execution, not
> copy,
> > nor modifications, nor distributions, and it must be located within some
> > rules to prevent that those limitations hurt people fundamental rights. I
> > think it's right to guarantee the author that his time and his knowledge
> > aren't applied in actions which not reflect his life style, his beliefs.
> > It's time to look around us and consider things for which is necessary and
> > is right to fight, things which truly "pay" years of studies and work.
> >
> > Not in my name.
> > - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
> -
> >
> > What about creating an 'Ethic' option for CC licenses?
> >
> >
> > ------------------------------
> >
> > _______________________________________________
> > cc-licenses mailing list
> > cc-licenses AT lists.ibiblio.org
> > http://lists.ibiblio.org/mailman/listinfo/cc-licenses
> >
> >
> > End of cc-licenses Digest, Vol 5, Issue 8
> > *****************************************
---------------------
Glenn Otis Brown
Executive Director
Creative Commons
glenn AT creativecommons.org
+1.650.723.7572 (telephone)
+1.415.336.1433 (mobile)

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