Copyright, derivative works, and truly free licensing (Was: Wine license change)

[Brett Glass]

At 12:21 AM 2/10/2002, Anthony Taylor wrote:

>Sir,
>
>You have made this claim many times, and asserted various lawyers have told you it is true.  Please explain the details.

I've already done so in an earlier message, and don't want to clutter
the list. But because this is an important issue, I'll give a more
detailed explanation below.

>  The GPL and LGPL specifically cover source code, * not* algorithms.  How can the act of reading *GPL source code expose you to liability, any more than reading a novel can prevent you from writing your own?

For the same reason that George Harrison was convicted for writing a song 
("My Sweet Lord") that was similar, but not identical, to one he'd once 
heard, even though he was not conscious of doing any copying. For the
same reason that the engineers who write the re-engineered code during 
"clean room" reverse engineering must never have seen the original code.
(The engineers who implemented the Phoenix BIOS, for example, had never
even programmed the x86 family of processors before. This was a specific
requirement; anyone who had written a line of 8088 assembler was rejected
for the job.) And for the same reason that movie producers such as 
George Lucas and Steven Spielberg will not read unsolicited scripts that 
are sent to them. (Lucas has been sued at least once by writers who 
claimed that elements of Star Wars -- such as the Ewoks -- were derived 
from scripts that had been submitted to him in the past.) 

J.K. Rowling, author of the Harry Potter books, was recently sued and 
accused of copying specific elements of other children's books. The 
books she was accused of copying are quite different from hers in most
respects. However, it was pointed out that she used the same made-up 
word -- "muggles" -- in the same way and to mean the same thing. The 
court took the claim very seriously, because the odds of such a thing 
happening by accident are minuscule. Rowling may, in fact, have copied 
completely unconsciously, but this doesn't matter from the standpoint 
of copyright law. 

Having seen the original code (or heard the original song, or read the
original book) whose copyright you have been accused of infringing can 
give rise to a claim that your work is a derivative of the original. Under 
copyright law, the burden is on you to prove that you didn't -- consciously 
or even unconsciously -- derive any part of your work from the original 
material.

Copyright doesn't cover algorithms, but it does cover their expression as
source code. If you implement an algorithm that appeared in the original 
code, and your implementation looks enough like it, it can be claimed that 
you're copying some or all of the way that the original author expressed 
the algorithm. 

What happens if you're accused? If you're a large, rich corporation, you
may be able to defend the claim. But if you're an individual, or the owner
or employee of a small company, the suit itself can be devastating. It's 
a good thing for J.K. Rowling that she made lots of money from her books, 
because if she were less successful she might well have been bankrupted
by the costs of the lawsuit. And you MUST defend yourself. Copyright 
infringement isn't just a civil offense; it's a criminal offense. 
And the penalties are extraordinarily steep -- thousands of dollars per
infringing copy. You can take a big hit even if the accusation is frivolous.

This is why the FSF has been able to force people and small companies to 
back down when there's a mere accusation of violating the GPL or LGPL. 
People can't afford the disruption to their lives and businesses -- not 
to mention the cost -- of being sued. While the FSF gets free legal 
services from Eben Moglen and others, you'll have to pay hundreds of 
dollars per hour. If you're an individual programmer or a small business, 
it's easy to be wiped out.

That's why there's such a danger here... and why we won't read GPLed
or LGPLed code. We can't afford the accusation -- much less to be
convicted.

The MIT and BSD licenses, on the other hand, give you permission to
derive code from the original and use it for any purpose. Thus, all of 
these issues do not come up. You can proceed with absolute confidence.
You do not have to worry about being sued, or about possible ways in 
which a court might interpret the arcane legalese of the GPL or LGPL.

So, you can see why, as programmers who don't want to wind up in court 
or be distracted by legal worries, we will not so much as read GPLed or
LGPLed code. The only simple and sure way to avoid these potential
problems is to stick with code that's licensed under what I call a 
truly free (TF) license.

The definition of a truly free license is simple. A truly free license
does not limit what you may do with the source code. The only thing it
can limit is what you may do TO the author. It may, for example, prohibit 
you from using the author's trademarks (the Apache and Artistic licenses
have this restriction) and/or from failing to give the author some
credit for his or her work (the BSD license does this). And, like the
WINE license, it may prohibit you from suing the author for damages if
there are bugs. But it can't keep you from reading, using, learning from, 
or deriving something new from the original code. It thus has a property
that the FSF's licenses do not: freedom from FUD. The current WINE License 
is truly free, and that is a very good thing for everyone.

--Brett