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

[Steve Langasek]

On Sun, Feb 10, 2002 at 10:34:30PM -0700, Brett Glass wrote:
> At 02:37 PM 2/10/2002, Francois Gouget wrote:

>>  Then you must object to the radios broadcasting hundred of thousands
>> of non-free copyrighted materials on the air. Surely with so many songs
>> being broadcasted any singer or musician must be at an awfully high risk
>> of being sued. 

> If you write a song, and the melody is very similar to that of a song
> you have heard, you very well may be sued if your song becomes popular.
> Fortunately, this does not happen very often. However, the precedent of 
> George Harrison shows that copyright infringement need not be conscious 
> to be actionable. You can be sued if you were exposed to the original
> work and there's a substantial similarity.

You can be sued for anything in this country.  You don't have to have ever 
seen the LGPL code in question for the author to bring a lawsuit against 
you; frivolous lawsuits are a national pastime.  I could, in theory, write 
a script that compares the source of all GNU software to the source of 
NetBSD in order to find the 5 largest sections of identical code that 
don't have the same copyright, and encourage the copyright holders of the 
GPLed code to sue over it.

This seems as great a danger to me as being sued for writing code that's 
"similar" to LGPLed Wine code.  Sure, you could be sued for writing code 
that looks like LGPLed Wine code; but to make it stick, your code would 
have to be both sufficiently similar to LGPLed Wine code and sufficiently 
DISsimilar to the established BSDesque Wine codebase.  That doesn't leave 
much room for unconscious imitation.

> However, exposure to the source code of a program whose copyright one
> could be accused of infringing (in the case of WINE, this would be the
> source of Windows itself) would definitely NOT be OK. This is why
> one cannot read (L)GPLed code and then write commercial programs.
> The FSF is likely to be a nasty litigant, and gets its legal services 
> for free. It would gladly bankrupt you if it would mean wiping out a 
> commercial developer.

FUD.  I'm sure the FSF would be a nasty litigant, if you refused to settle 
after infringing the copyright of any of their source code.  Since the FSF 
doesn't hold the copyright on any of the code in Wine, however, that 
objection isn't particularly relevant to the present case.

Unless your forecast of gloom and doom also specifies that once the main 
Wine tree is under the LGPL, we'll be beset by FSF minions trying to 
enhance the Wine code as quickly as possible in order to ensure that the 
FSF holds copyright on substantial portions of the work.

In which case, while I'll concede this would be bad for /you/, I don't 
really see how it's detrimental to the Wine community.  If the FSF can 
successfully throw that much programmer time at the problem, it's a win 
for those of us whose primary interest is getting a Free implementation of 
the Windows APIs on Unix.

Steve Langasek
postmodern programmer