🚀 go-pugleaf

In article <PREECE.94Oct14110811@predator.urbana.mcd.mot.com> preece@urbana.mcd.mot.com (Scott E. Preece) writes:

   Leaving aside the heat between Tim Smith and Craig Burley, and leaving
   aside what FSF does or doesn't claim, because I don't think you really
   need to consider either, what Tim said:

   |   If we apply the arguments FSF used last year during the gmp/RIPEN
   |   debate, then if the only implementation of that language is GPL'ed,
   |   you could only distribute source code written in that language
   |   under GPL, because leaving it to the end user to obtain the compiler
   |   is equivalent to shipping the compiler yourself if there is only
   |   one compiler available.  As soon as someone else implements the
   |   language (no matter how badly), it will then be OK to ship source
   |   in that language under non-GPL licenses.

   is not legally indefensible.  The definition of "derivative work" in
   the Copyright Act is quite broad, its application to software is not
   well defined, and a lot of things that seem intuitively to be OK are
   arguably infringing.  I think the claim that code written in a language
   is a derivative work of the specification of that language is
   defensible within the words of the Copyright Act.  I don't like that
   conclusion, but I wouldn't want my future income to depend on a court
   rejecting it.

I have to agree with you on this one.  Indeed, as you point out (in
the next para which I've omitted), the FSF has explicitly distanced
itself from this sort of thing, but that doesn't mean everyone else
will (or has).  (Furthermore, something you don't seem to mention,
is that the language itself might be copyrightable, so _nobody else_
can implement the language "no matter how badly".)

Ultimately I feel the whole mess stems from use of the Copyright Act,
which was intended to ensure variety in artistic/creative expression,
to provide an enhanced revenue stream for functional things like software.
It's pretty hard to come up with any coherent model for how the
Copyright Act can evolve along with the inevitable evolution of
software while it still tries to be all things to all people.
I still think the DAT tax and related legal threats, rulings, and so
on show just how far and wide beyond the original scope of the Copyright
Act the legal system is willing to cast its net just to make sure
that revenue streams are protected.

In the context of artistic/creative expression, it is often said that
Beethoven, Brahms, Mahler, and several other composers created a
musical "language" in which many of their most famous works were
written.

While it is certainly sensible that their compositions should be
copyrightable, it is difficult to understand how or why their
"languages" should be, even assuming they were capable of being
specified.

To me, such copyrighting is about as bad as software patents, and
I'm quite grateful that the FSF is having no part in using
this area of copyright law to forward its (ultimately
anti-software-copyright) agenda.  It's hard enough for people to
understand and accept the degree to which the FSF _does_ use
copyright law to forward its agenda, and certainly when it appears
to push even barely beyond the "accepted" areas of "ordinary"
copyright law, it is pretty thoroughly knocked for it.

Personally, I'd love to see this whole phantom-distribution thing
settled one way or the other, just so I'd know how feasible the
GPL will end up being.  Though, even if the courts did rule against
the FSF, certainly there will still be use for the GPL (after all,
developers of proprietary software containing GPLed code will have
a vested interest in ensuring the wide availability and quality of said
code, even though their installation scripts will patch it, compile
it, and link it with their proprietary object files).  But it'd
be good to know whether it really is possible for the GPL to ensure
that, in essence, any program containing GPL code that is distributed
from one person to another will have all of its source code available.

I've been too stunned and amazed by existing court rulings in
copyright cases, however, to believe that it is likely a court
would rule against the FSF.  Only my cynical belief that perhaps
some or all of these rulings were motivated largely by the court's
awareness of the _monetary_ revenue involved suggests to me that
the FSF might well end up on the short end of the stick.  Think of it --
companies like Lotus are successful at copyrighting an interface
that thousands of people are trained to use _before_ ever being
notified that said interface, and hence their training, is the
"property" of Lotus, but the FSF might end up losing the ability to
enforce rather explicit, up-front language in the GPL.  Again, my
cynical side says "after all, no judge will have investments in
the FSF or any similar organizations".
--

James Craig Burley, Software Craftsperson    burley@gnu.ai.mit.edu