🚀 go-pugleaf

Craig Burley <burley@gnu.ai.mit.edu> wrote:
>my posts saying that.  But changing nouns, such as pretending my saying
>"the GPL covers entire programs" is the same as saying "the GPL covers
>entire languages", doesn't count.

Ah, perhaps I now see where the confusion arises.  I'm not making an argument
about GPL.  I'm making an argument about copyright law.  Let's take it from
the top.  The basis of GPL is copyright law.  What I mean by that is if
you write a program and distribute it, and if doing so would not violate
the copyright of some GPL'ed code, then your code does not have to be
GPL'ed.

Put another way, the way one becomes bound to GPL is by doing something
that would infringe the copyright of some GPL'ed code if one did not have
permission to do that thing.

Now, go back to gmp/RIPEM.  FSF was claiming that the code distributed
had to be distributed under GPL.  For this claim to be valid, they must
have been alleging a copyright violation somewhere.  The violation is
not in the RIPEM code itself, for it did not contain GPL'ed code.
(To prove copyright violation, you have to show substantial similarity
between the code alleged to have been copied and the alleged infringing
code, and there was no such similarity in the RIPEM source and the gmp
source, unless FSF could somehow copyright the names and calling sequences
of functions, and I think we've all agreed that they cannot and they do
not claim to have such a copyright, right?).

So, where is the infringement?  One possibility is what is called
"contributory infringement".  The idea is that if you do something that
enables someone else to infringe a copyright, you can be liable for
the infringement.  For that to work, what the end user does has to be
an infringement.  The problem here is that that in terms of infringing
the copyright of X, there is no difference between (1) an end user obtaining
Y, modifying Y to work with X, and linking together X and Y, and (2) someone
else modifying Y to work with X, giving that to the end user, and the end
user linking X and Y.  If (1) does not infringe the copyright, then neither
does (2) (unless the mods to Y include actually physically copying part of
X into Y).  Neither GPL nor copyright law make any distinction here.
This is one of the reasons contrbutory infringement won't apply.
(If GPL included something like "you may link GPL'ed code with code you
write for your own use, but you cannot link it with code you obtain from
third parties unless that code is GPL'ed or is normally distributed with
the operating system", then the end user doing (2) would be violating
GPL, and a contributory infringement claim against the person who modifies
and distributes Y to work with X might fly).

Copyright law does recognize another form of indirect infringement.
That is where one does something to make someone else under their direct
control infringe a copyright.  Since the RIPEM people weren't forcing
anyone to build RIPEM with gmp, that won't apply.

That leaves us with direct infringement.  Now, perhaps I misunderstood,
but what I thought you and FSF were claiming was that if A is only useful
with B, and someone distributes A without B, telling the distributees to
obtain B themselves and combine A and B, then legally the person will be
treated as having distributed B with A.  When A == RIPEM and B == gmp,
then the RIPEM distribution in effect included gmp, and so was a *direct*
copyright infringement, and since gmp is GPL'ed, was only legal if
RIPEM was GPL'ed.  If, however, there is a drop-in substitute for B
available, then the distribution of A is no longer an implicit
distribution of B, and so A can be distributed without being put
under GPL.

If this is what was claimed, then I don't see anything that limits B to
being libraries.  This should work for any copyrighted code.  If B is
a copyrighted compiler, and there is no other compiler for that language,
and A is code written in that language, it seems to me that the same
arguments could be used by the owner of the copyright on the compiler.
I see nothing in the Copyright Act or the case law or the leading treatises
that indicates that there is a distinction between libraries and compilers
as far as copyright law goes.  FSF has only made this argument with respect
to libraries, as far as I know, and I seriously doubt that they would make
it with respect to a language, but they are not the only people who write
compilers.

--Tim Smith