GPL and Compilations
The GPL pretty clearly wants to cover "compliations" as well as derivative works. Just like the creation of a derivative work, if you create a "compliation" that includes software licensed under the GPL, the GPL wants to require you to license the compliation under the GPL. This intent is manifest in the next to last paragraph of Section 2, where it states "the intent [of section 2 of the GPL] is to exercise the right to control the distribution of derivative or collective works based on the Program."So what's a collective work? A good example is a book of short stories by different authors. There, each author retains the copyright in the individual short stories, but there is a separate copyright to the "compilation." Another example might be the collection of music on the CD distributed with the last edition of Wired Magazine. The theory is that there are choices made about what to include and not include; the nature of those choices are expressive and therefore copyrightable.
However, the next paragraph of the GPL states, "In addition, mere aggregation of another work not based on the Program with the Program ... on a volume of storage or distribution medium does not bring the other work under the scope of this License."
It looks like the GPL states that you must make compilations subject to the GPL except when it is a compilation.
I don't think this language works. Your thoughts?
10 Comments:
As an "average Joe" OSS user with a basic understanding of copyrights, I'll offer an example to demonstrate my reading of this.
I create a CD that I distribute (either by sale or giving it away). It contains:
* Program PROPRIETARY.EXE (a program which has a "traditional" software license). In this example, I have permission of the copyright holder to distribute this work, so everything is above board.
* Program GPL.EXE (a program licensed under the GPL, thus freely distributable within the terms of the GPL).
By my expressive creation, I have associated two unrelated works on my CD, and so there is a compilation copyright involved. Under the terms of the GPL, in order for me to have the right to distribute the disc with GPL.EXE in it, my compilation copyright *must* be licensed under the GPL.
The paragraph in question says that this provision doesn't mean PROPRIETARY.EXE is automatically distributable as GPL. It retains it's proprietary protection.
Remember, I obtained permission to distribute PROPRIETARY.EXE from the copyright holder. I get real popular distributing my CD, since the two unrelated works are complimentary in function in a very useful way to users. Subsequently, my Uncle Fester decides he wants in on the action too.
Uncle Fester obtains permission from the copyright holder of PROPRIETARY.EXE to distribute that work. He burns that onto a CD along with GPL.EXE. He has certain distribution rights under the GPL to do so. However, his compilation is a ripoff of my compilation, but that's okay for him to do, since my compilation copyright is GPLed. His compilation copyright is also constrained by the GPL if he wants to keep GPL.EXE in the compilation.
In essence, the GPL says if a compilation contains a GPLed work, then the compilation itself must be GPLed in order for the work to stay. It does NOT mean that proprietary works which are included in the compilation by permission will somehow get transformed into GPLed terms by that inclusion.
I think this provision is designed to ensure that a nefarious entity cannot "lock up" a GPLed work inside of a compilation copyright with restricted licensing terms. The whole point of the GPL is to ensure that, when you distribute a work so licensed, you cannot pass it along with more restrictions on it than when you received a copy. This preserves the integrity of the exact same set of rights through multiple instances of copying and distribution of the work.
Of course, I'm just a slightly-enlightened layman. YMMV. Comments?
This is an EXCELLENT thought! (And clearly presented.)
I'm not the only lawyer who has been mystified by the attempt to bring compilations into scope of the GPL. You may have a plausable explanation for the use of compilations.
lists.debian.org/debian-legal/2004/05/msg00390.html
Hth.
regards,
alexander.
> I think this provision is designed to ensure that a
> nefarious entity cannot "lock up" a GPLed work inside
> of a compilation copyright with restricted licensing
> terms.
Really? The FSF insists that the GPL is a bare copyright
license, not a contract. AFAIK, there's no exclusive
right "to prepare compilations" (collective works), only
derivative works. BTW, try explain (validity of) this
http://www.novell.com/licensing/eula/sles_9.pdf
agreement under your theory.
regards,
alexander.
--
"Other courts have reached the same conclusion: software
is sold and not licensed."
-- UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Thanks for both comments, Alexander. BYW, do you have the cite for the CDCal court case that made that statement?
Paul
http://tinyurl.com/3c2n2
regards,
alexander.
--
http://www.google.de/groups?threadm=4108B748.256EF70D%40web.de
http://www.google.de/groups?selm=41B227FE.E3B13B05%40web.de
As per a previous post:
"Really? The FSF insists that the GPL is a bare copyright
license, not a contract. AFAIK, there's no exclusive
right "to prepare compilations" (collective works), only
derivative works."
Fine, but then you have no right to copy the GPL work, so leave it out of your compilation or obtain the right to include it under some other terms. What is the issue?
You think you should be able to use my work but stop me from using yours? When it is my intention to let you use mine only of you let me any anyone else use yours?
If, in your mind, the GPL is insufficient to let me accomplish my wish, can you suggest some way for me to achieve my aims? Surely you cannot object to my right to seek to distribute my copyrighted works under these terms?
A Nony Mouse - GPL author
> leave it out of your compilation or obtain the right
> to include it under some other terms. What is the
> issue?
Copyright misuse (first sale aside for a moment).
Excerpt from "Open Source Licensing: Virus or Virtue?"
web.archive.org/web/20040102133703/http://www.utexas.edu/law/journals/tiplj/volumes/vol10iss3/nadan.html
----
The courts have yet to analyze a copyleft provision for
misuse, but the courts have addressed an analogous
provision—the grantback. A grantback provision requires
that a licensee of intellectual property grant back to
the licensor a license or ownership in creations made
by the licensee. The typical grantback provision
requires that the licensee give the licensor a
nonexclusive license to any improvements or
derivatives that the licensee creates based on the
original licensed property. The idea is that the
licensee would not have been able to make the
improvement or derivative without permission of the
licensor or at least access to the original; thus, the
licensor should not be blocked by an improvement or
derivative he and his intellectual property helped
create. Giving the license back encourages licensors
to license, since it mitigates the risk of becoming
blocked by derivative intellectual property. Like a
grantback, copyleft requires the licensee to license
back its improvements. The copyleft provision is more
expansive, though.
[...]
Although grantbacks have not come up in the copyright
misuse arena, they have in the patent context—and as
we have seen, the patent misuse cases form the
underpinning for the copyright misuse doctrine. Courts
have found that grantback clauses extending to
improvements are not misuse, because the licensee in
some sense developed the improvement with the help of
the original patent. Where grantback clauses extend to
preexisting or unrelated patents, however, courts have
found patent misuse. Where “the scope of
[licensee’s] ‘improvements’ and inventions required to
be assigned to [the patent licensor] extended far
beyond the scope of [the] basic patent [licensed by
licensor] the effect was to extend unlawfully its
monopoly and thus result in patent misuse.”[80]
Plainly, the Patent Act does not give the patent owner
rights to other unrelated patents, and using a patent
to obtain such rights exceeds the scope of the patent.
Similarly, the Copyright Act’s grant of rights does
not extend to unrelated works or preexisting (and
therefore necessarily nonderivative) works, and using
the copyright license to extract such rights exceeds
the scope of the copyright grant. This may constitute
copyright misuse. A license to a copyrighted work on
condition that any work with which it is combined or
shares data must be licensed back to the licensor—and
the entire world—on the specific terms the licensor
mandates, is beyond the scope of the copyright in the
originally licensed work. Yet this is what the GPL
apparently requires. The copyleft provision purports
to infect independent, separate works that are not
derivative of the open source code, and requires
that such independent works be licensed back to the
licensor and the entire world under the GPL. The
Copyright Act does not give the copyright owner
rights to such independent nonderivative works.
Attempting to extract such rights exceeds the scope of
the copyright. The fact that the GPL mandates that the
license be free and open is irrelevant; as explained
above, misuse doctrine does not require an analysis
of market share, or a weighing of the competitive and
anticompetitive effects of the provision.
If the copyleft provision constitutes misuse, then the
plaintiff’s copyrights in the open source program are
unenforceable until the misuse is purged.[81] As a
result, at least with respect to the code contributed
by any plaintiff, the defendant (and anyone else) could
infringe the copyright with impunity, including taking
the code private for his own commercial ends.[82] Thus,
licensors using copyleft licenses need to realize that
they may be unable to enforce the copyleft provision
against separate works of the licensee, and that any
such attempt may at least temporarily invalidate all
their copyrights in the entire open source program.
Copyleft licenses are still valuable, however, where
they do not try to infect independent code. They should
safely cover any dependent derivative works based on
the original GPL code. Licensors simply need to
understand the potential limitations and risks of
copyleft to employ it effectively.
----
regards,
alexander.
Replying to the recent post by Alexander. More specifically, replying to the excerpted article in his post.
I think the author of the article is missing an important point.
When you combine two copyrighted works, you create a new, third work. This work is not either of the two original works; it is a new work and has its own copyright.
Obviously, you cannot distribute this third work without permission of each of the copyright holders of the two base works. If they are not both willing to grant you the right to distribute the combined work, then you cannot do so. Of, if they are willing to grant you permission, but each specificies different terms, and the terms are incompatible, then you are stuck, and cannot distribute the third work.
Here's an example: you want to combine two stories, one by Stephen King and one by Piers Anthony, into a single volume and sell it. In order to do so, you need to get both their permissions. If Stephen King says "Fine, just pay me X amount per copy", but Piers Anthony says "No way", then you're out of luck and cannot sell the combined volumne. Similarly, if one says "Yes, but you can only sell it in paperback" and the other says "Yes, but you can only sell it in hardcover", then you are still out of luck. You can only sell the book if they both agree, and they agree to compatible terms.
If King said "you may take my story and publish it, but only if you give me the right to publish this story by Piers Anthony", that would be requesting the rights to an unrelated nonderivative work, and would be misuse. If, however, King said "you may take my story and publish it as part of a combined work, but only if you give me the right to publish the combined work, myself", that would not be misuse.
The GPL simply says that if you wish to combine a GPL'd work with another work, then you must get permission from the copyright holder of the other work to release the combined product under the GPL. If you cannot do so, then you cannot distribute the combined work.
The GPL is not asking you to release the other work under the GPL; it is only asking you to release the combined work under the GPL. The former might be copyright misuse, but the latter is not. The fact that the latter has a side effect of the former does not turn the latter into the former.
To reiterate, the main point in the article is that "The Copyright Act does not give the copyright owner rights to ... independent nonderivative works." The GPL is only asserting rights to dependent, derivative works. This is allowed and is not considered misuse.
If you want to combine independent noderivative work along with work that is distributed under the GPL, that is your choice, but the combined work is not independent of the GPL'd work, and it is derivative. The copyright owner of the GPL'd work does have a right to ask you for rights to the combined work.
At least, that's how I see it.
-- Ken
Disclaimer: I am not a lawyer. I was not involved in writing the GPL. Everything expressed here is my opinion, and is based on publicly available information. Opinons expressed do not necessarily reflect the opinions of any other person or entity.
> If you want to combine independent noderivative work
> along with work that is distributed under the GPL,
> that is your choice, but the combined work is not
> independent of the GPL'd work, and it is derivative.
Sez who? Well,
http://www.xfree86.org/pipermail/forum/2004-March/004301.html
;-)
regards,
alexander.
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