Subject: Re: Get ready....
From: Arkin <arkin@trendline.co.il>
Date: Thu, 15 Apr 1999 17:25:41 -0400

bruce@perens.com wrote:
> 
> From: Arkin <arkin@trendline.co.il>
> > This is true all over the world with only subtle differences. Copyright
> > laws are very similar between nations and automatically apply across
> > borders by international treaties.
> 
> We aren't so ignorant that we are unaware of copyright conventions.
> Copyright has been upheld here often for items that are clearly not
> literal works, including contracts, and mathematical devices like the
> Smith Chart.

You can copyright a contract if you can claim that there is anything
substantially original about it. I know of at least one leasing company
that went to court for someone duplicating their leasing contract. But
it was a well concienved over 20-pages document. You can also copyright
a book full of public domain forms, in which case the copyright protects
the worked that went into assmebly of the forms, not the actual forms.

There's a very simple test to figure out if something is subject to
copyright law. Imagine that I never saw the GPL and someone asked me to
write a license that will provide the same legal provisions as the GPL.
After all, the concept behind the GPL is not subject to copyright law
(it might be patentable, though). Due to the limitations imposed by the
legal language, it is very likely that I will come up with a document
that looks very much or is identical to the legal section of the GPL.

A court will use this test to decide whether copyright law holds in this
case, before checking whether I violated it by copying the GPL, or wrote
it myself. That test is not expressed in the copyright codex as well as
it is expressed in the court system.

As I pointed out, this only references to the actual license in the GPL.
The entire GPL document is definitely the works of RMS. Had I set to
write the entire GPL document on my own, I would not come up with the
same Premable and other annotations. But these parts of the GPL have no
legal meaning and there is no point in even attempting to copy/recreate
it. Thus, copying the GPL document from the FSF site and changing a word
in it is illegal, but taking the essence of the GPL and putting it in a
new document is perfectly legal.


> > The GPL is a trademark.
> 
> The owner of the postulated trademark refuses to treat it as such, so there
> is little point in making the case that it is one.

That is an interesting flaw in the argument preserving the integrity of
the GPL. RMS claims that I cannot change the GPL, yet I can write my own
license (say by copying the Windows EULA) and name it the GPL and RMS
will not come after me. I can take the MPL, tell people it's just like
the GPL, and still RMS will not come after me. But I cannot take the
GPL, add my signature at the bottom and use it.

The GPL is full of holes like this. This stems from the fact that is was
created as a political agenda more than anything else. If you are
looking for a solid base for argument and open source licensing in
general, I suggest you start looking into the Mozilla Public License.
Not that it's perfect, but it does deal with this issues specifically
and correctly. You can change the document, you cannot call it the MPL.

Arkin

> 
>         Bruce