Subject: Re: For Approval: GPLv3
From: Rick Moen <rick@linuxmafia.com>
Date: Thu, 16 Aug 2007 14:36:19 -0700

Quoting Chris Travers (chris@metatrontech.com):
> Rick Moen wrote:

> >Derivative work is a term of art in copyright law.  GPLv[23] cannot
> >regulate the scope of copyright coverage (that being defined by law),
> >and can only embody the licensor's conditions for third parties'
> >creation and distribution of whatever the _law_ judges to be derivative
> >works.
> >  
> Agreed as far as you take it.  "The law" is sort of difficult to define 
> (in fact borders on being entirely meaningless) though when there is no 
> consideration to where a given case may be tried.

As Douglas Adams attributed to God as his final message to his
creations:  "We apologise for the inconvenience."  ;->  

I,e. it's lamentable that "the law" is difficult to define, but it is
simply a fact that law, not licensing, defines the concept of derivative
work and thus of the reach available to licences under copyright law.
Thus my point.

> Can one even speak of "the law" as singular in this case?
 
Actually, despite the admitted handicap of being a Yank, I'm aware of
the existence of diverse legal jurisdictions and endeavour to reflect
that awareness in my posts.


> There is nothing that prevents the license from granting permissions 
> outside a narrower definition of the work as a whole or derived works 
> according to copyright law (and arguably the GPL v3's definition of what 
> parts are required to be source-accessible is narrower than it is in the 
> GPL v2).

Nor did I so state.

None of the rest of your post appears to concern OSD compliance, but 
rather meanders around licence compatibility and other similar concerns.
Exceptions:

> >Thus, if a proprietary blob is implemented with a driver in a fashion
> >that's alleged to violate the copyright of the driver's (or OS's)
> >copyright owners, then that is a judicable question of fact that in the
> >USA would be settled using the conceptual test the 2nd Circuit developed
> >in CAI v.  Altai.
> 
> But that specific test only affects people in the second circuit.

I'm sorry, but you need to get out more.  The CAI case's abstraction,
filtration, comparison test is now applied, in copyright-infringement
cases involving software works, nationwide.

> I believe the 9th Circuit has a different one from the Gates Rubber 
> case).

Gates Rubber (10th Circuit) merely further elaborated the CAI test.  I'm
not clear if there are now subtle differences among the districts
(IANAL, TINLA, YADA), but if extant they don't negate my overall point
that law, not licensing, defines the scope of derivative works, and that
the CAI test is what the courts would use in the USA.

> One issue I have with the GPL in general (again not in the scope of
> whether or not to approve) is that there is no possibility to control
> jurisdiction, so it is impossible for anyone to know whether a
> specified activity will be a problem in terms of copyright law or not
> (this is true even within the US, and is far worse internationally).

Again, this is not so much a problem with GPLv[23] as it is an inherent
one in the diversity of this planet's legal jurisdictions.  Neither FSF
nor OSD can do a great deal to address that, and it has no visible
conneciton to OSI's certification process, in any event.