how much right do I have on my project, if there are patches by others?

[Joseph Hick]

if I release a project under GNU GPL license i know
that i hold the copyright to it. through GNU GPL, i do
not allow others to sell my software as closed source
as make commercial benefits. but at the same time, i
can sell my own software as closed source under
commercial licenses if i wish.

but things become different when someone submits a
patch to my software. the patch-submitter holds the
copyright on the patch. so if I include it into my
software, do I lose the right to sell my own software
under a commercial license? :-(

so in order to avoid it, i have to reject his patch
and code the same changes myself. is there any other way?


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[Nick Moffitt]

Joseph Hick:
> but things become different when someone submits a patch to my
> software. the patch-submitter holds the copyright on the patch. so if
> I include it into my software, do I lose the right to sell my own
> software under a commercial license? :-(

"You keep using that word.  I do not think it means what you think it
means."

The GPL *is* a commercial license.  One of the rights it protects is the
right to commerce.  You or anyone in the world is allowed to sell
distribution media containing the software, provided certain other
criteria are also met.

Perhaps you meant a proprietary license, rather than "commercial".

> so in order to avoid it, i have to reject his patch and code the same
> changes myself. is there any other way?

The GNU project has always preferred that copyright for GNU code be held
by the Free Software Foundation for reasons parallel to what you
describe.  In situations where copyright could not be assigned for
whatever reason, project GNU has been known to re-implement.

I recall RMS saying once that for patches below a certain threshold (a
diff of 10 lines, say) it wasn't worth bothering with copyright
assignment since the material in question is so trivially small as not
to be a risk.  I'm unsure as to whether this attitude is still
reasonable in the current climate.

--
BitKeeper, how quaint.                         Nick Moffitt
                -- Alan Cox                   nick@...

[Joseph Hick]

Yes, I actually meant a proprietary license. thanks
for correcting me.

why does FSF want the copyright to be them? they don't
want to sell their product under any proprietary
license. they just want to share their product with
the open source community.

so having a copyright over the complete software or
sharing the copyright with other contributors should
not matter to FSF.

please correct me I am wrong and help me understand
better, since I am new to this world of software
licenses.

--- Nick Moffitt <nick@...> wrote:

> Joseph Hick:
> > but things become different when someone submits a
> patch to my
> > software. the patch-submitter holds the copyright
> on the patch. so if
> > I include it into my software, do I lose the right
> to sell my own
> > software under a commercial license? :-(
>
> "You keep using that word.  I do not think it means
> what you think it
> means."
>
> The GPL *is* a commercial license.  One of the
> rights it protects is the
> right to commerce.  You or anyone in the world is
> allowed to sell
> distribution media containing the software, provided
> certain other
> criteria are also met.
>
> Perhaps you meant a proprietary license, rather than
> "commercial".
>
> > so in order to avoid it, i have to reject his
> patch and code the same
> > changes myself. is there any other way?
>
> The GNU project has always preferred that copyright
> for GNU code be held
> by the Free Software Foundation for reasons parallel
> to what you
> describe.  In situations where copyright could not
> be assigned for
> whatever reason, project GNU has been known to
> re-implement.
>
> I recall RMS saying once that for patches below a
> certain threshold (a
> diff of 10 lines, say) it wasn't worth bothering
> with copyright
> assignment since the material in question is so
> trivially small as not
> to be a risk.  I'm unsure as to whether this
> attitude is still
> reasonable in the current climate.
>
> --
> BitKeeper, how quaint.                         Nick
> Moffitt
>                 -- Alan Cox                  
> nick@...
>

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[Arnoud Engelfriet-2]

Joseph Hick wrote:
> so having a copyright over the complete software or
> sharing the copyright with other contributors should
> not matter to FSF.

Having the full copyright allows you to change the license, or
to license it to some under a different license. It also allows
you to sue for infringement or violation of the license.

Having full copyright allows the FSF to move its GNU project
to GPL version 3, for example.

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[Ben Tilly]

On 7/6/07, Joseph Hick <leet16y@...> wrote:
> Yes, I actually meant a proprietary license. thanks
> for correcting me.
>
> why does FSF want the copyright to be them? they don't
> want to sell their product under any proprietary
> license. they just want to share their product with
> the open source community.

See http://www.gnu.org/licenses/why-assign.html.  Not stated there,
but very important, is the fact that in trying to assign copyrights
you often clarify whether you have the copyrights that you thought you
had.  Which can avoid problems down the road.

Let me give a concrete example.  Suppose we have two programmers, A
and B.  Both are professional programmers, and have been employed for
some time by companies that produce proprietary software.  Both
contribute to open source projects from home.  Neither has discussed
this with their employer.  Both signed typical employment contracts.
They are in all respects similar except that A lives in New York and B
lives in California.

Because of differing state laws, chances are that B owns the copyright
to his work and A does not.  The declarations that A writes that his
code is open source are meaningless because he has no authority to
give that permission on code that is legally a work for hire belonging
to his employer.  Similar declarations from B mean exactly what B
expects.  Furthermore odds are good that neither has a clue that this
distinction exists.

If both try to donate code to the FSF, this distinction will be
discovered and the FSF is freed from worries about nasty surprises
when an employer discovers what an employee has been doing in what he
thought was his spare time.

> so having a copyright over the complete software or
> sharing the copyright with other contributors should
> not matter to FSF.

They occasionally might want to, for instance, turn GPLed code into
LGPLed code.  So it matters a little bit.  But knowing that you have a
*clean* copyright is a much bigger deal for them.

> please correct me I am wrong and help me understand
> better, since I am new to this world of software
> licenses.

Cheers,
Ben

[Ben Tilly]

On 7/6/07, Arnoud Engelfriet <arnoud@...> wrote:
> Joseph Hick wrote:
> > so having a copyright over the complete software or
> > sharing the copyright with other contributors should
> > not matter to FSF.
>
> Having the full copyright allows you to change the license, or
> to license it to some under a different license. It also allows
> you to sue for infringement or violation of the license.

Having a partial copyright is sufficient for filing lawsuits.
Otherwise you're right.

> Having full copyright allows the FSF to move its GNU project
> to GPL version 3, for example.

Bad example.  If you've followed the FSF recommendations for how to
apply the GPL (the ones that are written into the GPL), then no
permission is needed to go from GPL v2 to v3.

Cheers,
Ben

[Arnoud Engelfriet-2]

Ben Tilly wrote:
> On 7/6/07, Arnoud Engelfriet <arnoud@...> wrote:
> >Having the full copyright allows you to change the license, or
> >to license it to some under a different license. It also allows
> >you to sue for infringement or violation of the license.
>
> Having a partial copyright is sufficient for filing lawsuits.
> Otherwise you're right.

I guess it depends on jurisdiction. In some, you need permission
from all copyright holders. In others, any copyright holder can
sue, but at the same time any other copyright holder can grant
a license to the entire work, making such lawsuits a waste of money.

> >Having full copyright allows the FSF to move its GNU project
> >to GPL version 3, for example.
>
> Bad example.  If you've followed the FSF recommendations for how to
> apply the GPL (the ones that are written into the GPL), then no
> permission is needed to go from GPL v2 to v3.

Those recommendations are not part of the GPL, fortunately.
Maybe I should have stated it differently: if every author
retains his copyright, the full work cannot be relicensed
unless every author gives permission. This is why it will
be extremely difficult to move the Linux kernel to GPLv3
(even assuming Linus Torvalds wants to).

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[Nick Moffitt]

Arnoud Engelfriet:
> Ben Tilly wrote:
> > Bad example.  If you've followed the FSF recommendations for how to
> > apply the GPL (the ones that are written into the GPL), then no
> > permission is needed to go from GPL v2 to v3.
>
> Those recommendations are not part of the GPL, fortunately.

See the "How to Apply These Terms to Your New Programs" section, which
suggests that you use the wording "either version <N> of the License, or
(at your option) any later version."  These recommendations are not
related to assignment of copyright, and reasonable people differ on the
relative benefits of licensing software in this manner.

--
"These people program the way Victorians dress.              Nick Moffitt
It takes two hours and three assistants to put on           nick@...
your clothes, and you have to change before dinner.
But everything is modular."    -- Miles Nordin, on PAM

[Arnoud Engelfriet-2]

Nick Moffitt wrote:

> Arnoud Engelfriet:
> > Ben Tilly wrote:
> > > Bad example.  If you've followed the FSF recommendations for how to
> > > apply the GPL (the ones that are written into the GPL), then no
> > > permission is needed to go from GPL v2 to v3.
> >
> > Those recommendations are not part of the GPL, fortunately.
>
> See the "How to Apply These Terms to Your New Programs" section, which
> suggests that you use the wording "either version <N> of the License, or
> (at your option) any later version."  

That heading is directly below the "END OF TERMS AND CONDITIONS"
notice, which is why I said they are not part of the GPL.

Linus Torvalds is probably the most famous author that chose
not to use this wording when applying GPL version 2 to his software.

> These recommendations are not
> related to assignment of copyright, and reasonable people differ on the
> relative benefits of licensing software in this manner.

Indeed. But you can guess in which camp I am. :)

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[Ben Tilly]

On 7/6/07, Arnoud Engelfriet <arnoud@...> wrote:

> Ben Tilly wrote:
> > On 7/6/07, Arnoud Engelfriet <arnoud@...> wrote:
> > >Having the full copyright allows you to change the license, or
> > >to license it to some under a different license. It also allows
> > >you to sue for infringement or violation of the license.
> >
> > Having a partial copyright is sufficient for filing lawsuits.
> > Otherwise you're right.
>
> I guess it depends on jurisdiction. In some, you need permission
> from all copyright holders. In others, any copyright holder can
> sue, but at the same time any other copyright holder can grant
> a license to the entire work, making such lawsuits a waste of money.

I am not a lawyer, but I've never heard of such a jurisdiction.  I'm
positive that the USA, Canada and Great Britain don't work that way,
and I'd be surprised if any country following British Common Law does.
 (Yes, I know that Quebec, Canada and Louisiana, USA do not follow
British Common Law.)

Can you name an example that does?

There is, however, a big negotiating benefit to having full copyright.
 See http://www.gnu.org/philosophy/enforcing-gpl.html for a
description of how the FSF enforces the GPL.  You'll see that out of
court settlements are a key part of their strategy.  Now because the
FSF is the sole copyright holder, they can offer an out of court
settlement and guarantee that you won't be sued if you settle.  By
contrast if they were not the sole copyright holder, they couldn't
offer such guarantees, which would make those settlements much harder
to achieve.

> > >Having full copyright allows the FSF to move its GNU project
> > >to GPL version 3, for example.
> >
> > Bad example.  If you've followed the FSF recommendations for how to
> > apply the GPL (the ones that are written into the GPL), then no
> > permission is needed to go from GPL v2 to v3.
>
> Those recommendations are not part of the GPL, fortunately.

What do you mean by "part of the GPL"?  They are certainly part of the
document, if you tried to remove them then you'd be violating the
FSF's copyright on the GPL.  You are not, however, required to follow
those recommendations in applying the GPL.  (Mild irony.  The text of
the GPL is copyrighted, and its copyright is neither free nor open
source.  Yes, there is excellent reason for this, but I still am
amused by it.)

> Maybe I should have stated it differently: if every author
> retains his copyright, the full work cannot be relicensed
> unless every author gives permission. This is why it will
> be extremely difficult to move the Linux kernel to GPLv3
> (even assuming Linus Torvalds wants to).

This is true.  However I'll note that many software licenses (eg MIT)
give permission to relicense derivative works.  The GPL is, of course,
not among these.

Cheers,
Ben

[Joseph Hick]

> > > Bad example.  If you've followed the FSF
> recommendations for how to
> > > apply the GPL (the ones that are written into
> the GPL), then no
> > > permission is needed to go from GPL v2 to v3.
> >
> > Those recommendations are not part of the GPL,
> fortunately.

I did not understand this part. How can anyone stop
Linus Torvalds or anyone from redistributing Linux
under GPL v3 even if Linus has partial copyright on
his software? the GPL clearly states that I or any
Linux owner is free to distribute it under GPL v2 or a
later version.

so, if Linus wants to distribute it under v3 but his
co-authors disagree, Linus is legally allowed to go
ahead with his own fork of Linux under v3 while his
co-authors can go ahead with another fork under v2. Am
I right?

> What do you mean by "part of the GPL"?  They are
> certainly part of the
> document, if you tried to remove them then you'd be
> violating the
> FSF's copyright on the GPL.  You are not, however,
> required to follow
> those recommendations in applying the GPL.

but I think MySQL and some other companies have
changed the clause "version 2 or at your option any
later version to" to "version 2 only". and if GPL v2
is copyrighted, and not free, then how do we all use
it verbatim in our software. under full copyright with
no permissive clause, i think we are not even allowed
to copy and distribute the GPL verbatim.




 
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[Arnoud Engelfriet-2]

Ben Tilly wrote:
> On 7/6/07, Arnoud Engelfriet <arnoud@...> wrote:
> >I guess it depends on jurisdiction. In some, you need permission
> >from all copyright holders. In others, any copyright holder can
> >sue, but at the same time any other copyright holder can grant
> >a license to the entire work, making such lawsuits a waste of money.
>
> I am not a lawyer, but I've never heard of such a jurisdiction.  I'm
> positive that the USA, Canada and Great Britain don't work that way,
> and I'd be surprised if any country following British Common Law does.

It is my understanding of US copyright law that each co-owner of
a work has an independent right to use or non-exclusively license
the use of a work.

>From
>http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000201----000-notes.html
There is also no need for a specific statutory provision concerning the
rights and duties of the coowners of a work; court-made law on this point is
left undisturbed. Under the bill, as under the present law, coowners of a
copyright would be treated generally as tenants in common, with each coowner
having an independent right to use or license the use of a work, subject to
a duty of accounting to the other coowners for any profits.

In Germany all copyright holders need to consent to a license granted
by any one copyright holder.

> >Those recommendations are not part of the GPL, fortunately.
>
> What do you mean by "part of the GPL"?  

I mean they are not part of the license. True, they are on the
same document, but they are not a license term.

> They are certainly part of the
> document, if you tried to remove them then you'd be violating the
> FSF's copyright on the GPL.  

The GNU GPL (v3) is the text from "GNU GENERAL PUBLIC LICENSE" up to
and including "END OF TERMS AND CONDITIONS" on the page
http://www.gnu.org/licenses/gpl-3.0.txt
[the same applies to GPLv2]

Everything above and below (and to the side) of that is not
part of the license document. I don't see how a text that is
below a marker "END OF TERMS AND CONDITIONS" can be considered
part of a license.

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[John Cowan]

Joseph Hick scripsit:

> so in order to avoid it, i have to reject his patch
> and code the same changes myself. is there any other way?

As you know, you can also ask the patch author to transfer the
copyright; a third way is to ask for the patch to be licensed
under a permissive license such as the BSD license that is
compatible with both the GPL and proprietary use.

--
John Cowan    http://ccil.org/~cowan  cowan@...
The Penguin shall hunt and devour all that is crufty, gnarly and
bogacious; all code which wriggles like spaghetti, or is infested with
blighting creatures, or is bound by grave and perilous Licences shall it
capture.  And in capturing shall it replicate, and in replicating shall
it document, and in documentation shall it bring freedom, serenity and
most cool froodiness to the earth and all who code therein.  --Gospel of Tux

[Ben Tilly]

On 7/6/07, Arnoud Engelfriet <arnoud@...> wrote:

> Ben Tilly wrote:
> > On 7/6/07, Arnoud Engelfriet <arnoud@...> wrote:
> > >I guess it depends on jurisdiction. In some, you need permission
> > >from all copyright holders. In others, any copyright holder can
> > >sue, but at the same time any other copyright holder can grant
> > >a license to the entire work, making such lawsuits a waste of money.
> >
> > I am not a lawyer, but I've never heard of such a jurisdiction.  I'm
> > positive that the USA, Canada and Great Britain don't work that way,
> > and I'd be surprised if any country following British Common Law does.
>
> It is my understanding of US copyright law that each co-owner of
> a work has an independent right to use or non-exclusively license
> the use of a work.

Um, coowners are a very different situation from the comingled
copyright issues that are normal in open source software.  Or at least
that is my non-lawyerly understanding.

> >From
> >http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000201----000-notes.html
> There is also no need for a specific statutory provision concerning the
> rights and duties of the coowners of a work; court-made law on this point is
> left undisturbed. Under the bill, as under the present law, coowners of a
> copyright would be treated generally as tenants in common, with each coowner
> having an independent right to use or license the use of a work, subject to
> a duty of accounting to the other coowners for any profits.

From the same source, opening paragraph:

: Under the definition of section 101, a work is "joint" if the
: authors collaborated with each other, or if each of the authors
: prepared his or her contribution with the knowledge and intention
: that it would be merged with the contributions of other authors
: as "inseparable or interdependent parts of a unitary whole."

This is not how open source software is developed.  There authors do
not start with the knowledge or intention of what other authors will
later do with their work.  Therefore rather than winding up with a
situation where multiple people share ownership of the same copyright,
you have multiple people who each have copyright interest in the
derived work.

> In Germany all copyright holders need to consent to a license granted
> by any one copyright holder.

I know nothing of German law.

> > >Those recommendations are not part of the GPL, fortunately.
> >
> > What do you mean by "part of the GPL"?
>
> I mean they are not part of the license. True, they are on the
> same document, but they are not a license term.

True.

> > They are certainly part of the
> > document, if you tried to remove them then you'd be violating the
> > FSF's copyright on the GPL.
>
> The GNU GPL (v3) is the text from "GNU GENERAL PUBLIC LICENSE" up to
> and including "END OF TERMS AND CONDITIONS" on the page
> http://www.gnu.org/licenses/gpl-3.0.txt
> [the same applies to GPLv2]
>
> Everything above and below (and to the side) of that is not
> part of the license document. I don't see how a text that is
> below a marker "END OF TERMS AND CONDITIONS" can be considered
> part of a license.

The first paragraph of the GPL v2 reads:

: Copyright (C) 1989, 1991 Free Software Foundation, Inc.
:  59 Temple Place, Suite 330, Boston, MA  02111-1307  USA
: Everyone is permitted to copy and distribute verbatim copies
: of this license document, but changing it is not allowed.

The FSF recommendations for how to apply the GPL are part of this
copyrighted document.  If you distribute the terms and conditions of
the GPL but omit including their recommendations, you have violated
the copyright on the GPL document.

You do not, of course, have to follow their recommendations. :-)

Cheers,
Ben

[John Cowan]

Joseph Hick scripsit:

> I did not understand this part. How can anyone stop
> Linus Torvalds or anyone from redistributing Linux
> under GPL v3 even if Linus has partial copyright on
> his software? the GPL clearly states that I or any
> Linux owner is free to distribute it under GPL v2 or a
> later version.

Nope.  The GPLv2 recommends that in the copyright notice that
you attach to your actual source code you allow people to use
it under the GPLv2 or any later version.  If you choose not
to do that, the GPLv3 doesn't license that code.

> so, if Linus wants to distribute it under v3 but his
> co-authors disagree, Linus is legally allowed to go
> ahead with his own fork of Linux under v3 while his
> co-authors can go ahead with another fork under v2. Am
> I right?

Linus can do what he likes with the (rather small) part of the
kernel that is under his copyright.  Others have used the
v2-only language on their parts (as has he) and he is bound
by that, at least in principle.

(In practice, they would be hard put to it to sue for their
rights effectively; see my earlier posting on the paper tiger
that copyright suits are when dealing with works available gratis.)

> and if GPL v2 is copyrighted, and not free, then how do we all use
> it verbatim in our software. under full copyright with no permissive
> clause, i think we are not even allowed to copy and distribute the
> GPL verbatim.

We are permitted to do that; it says so at the top of the GPL.

--
Principles.  You can't say A is         John Cowan <cowan@...>
made of B or vice versa.  All mass      http://www.ccil.org/~cowan
is interaction.  --Richard Feynman

[Arnoud Engelfriet-2]

Ben Tilly wrote:
> On 7/6/07, Arnoud Engelfriet <arnoud@...> wrote:
> >It is my understanding of US copyright law that each co-owner of
> >a work has an independent right to use or non-exclusively license
> >the use of a work.
>
> Um, coowners are a very different situation from the comingled
> copyright issues that are normal in open source software.  Or at least
> that is my non-lawyerly understanding.

Good point. It's more like everyone is developing derivative works
based on everyone else's derivative works. Co-owning would be when
we mail code back and forth until we're satisfied. Derivative works
is when I write a patch to your code. Then I own the derivative
and you own the original.

> This is not how open source software is developed.  There authors do
> not start with the knowledge or intention of what other authors will
> later do with their work.  Therefore rather than winding up with a
> situation where multiple people share ownership of the same copyright,
> you have multiple people who each have copyright interest in the
> derived work.

It's my understanding that if someone distributes my derivative work
without my permission, I have standing to sue by myself. If the third
party does not distribute my original contribution (my patch), but
only your original, I have no standing because my copyright only
subsists in my additions.

So I *think* any contributor can sue over infringement over his
'contributor version', independently of any other contributor.
I guess I'll have to read Rosen again.

> The first paragraph of the GPL v2 reads:
>
> : Copyright (C) 1989, 1991 Free Software Foundation, Inc.
> :  59 Temple Place, Suite 330, Boston, MA  02111-1307  USA
> : Everyone is permitted to copy and distribute verbatim copies
> : of this license document, but changing it is not allowed.
>
> The FSF recommendations for how to apply the GPL are part of this
> copyrighted document.  If you distribute the terms and conditions of
> the GPL but omit including their recommendations, you have violated
> the copyright on the GPL document.

I guess we're reading "this license document" differently. You say
it refers to the entire text of the HTML or text document on the FSF
website. I say it refers only to the text between "GNU GENERAL
PUBLIC LICENSE" and "END OF TERMS AND CONDITIONS", because only
that text is part of the license.

I don't think this is covered in the FAQ.

Arnoud

--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

[John Cowan]

Ben Tilly scripsit:

> : Under the definition of section 101, a work is "joint" if the
> : authors collaborated with each other, or if each of the authors
> : prepared his or her contribution with the knowledge and intention
> : that it would be merged with the contributions of other authors
> : as "inseparable or interdependent parts of a unitary whole."
>
> This is not how open source software is developed.  

It is, however, how patches are accepted and processed: patch authors,
if the patch is substantial and is accepted into the original work,
do meet the definition of joint authorship.

I think also that people who submit modules for the Linux kernel
also meet the second part of the definition: there is relatively
little kernel code that was originally developed for a separate
purpose outside the kernel.

--
John Cowan                              <cowan@...>
            http://www.ccil.org/~cowan
                .e'osai ko sarji la lojban.
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[Ben Tilly]

On 7/6/07, John Cowan <cowan@...> wrote:

> Ben Tilly scripsit:
>
> > : Under the definition of section 101, a work is "joint" if the
> > : authors collaborated with each other, or if each of the authors
> > : prepared his or her contribution with the knowledge and intention
> > : that it would be merged with the contributions of other authors
> > : as "inseparable or interdependent parts of a unitary whole."
> >
> > This is not how open source software is developed.
>
> It is, however, how patches are accepted and processed: patch authors,
> if the patch is substantial and is accepted into the original work,
> do meet the definition of joint authorship.

That's an interesting theory, and if it was upheld it would have
significant legal consequences for open source software.  In
particular it could mean that a significant contributer to a piece of
software might then have the right to unilaterally relicense the whole
piece of software.  Under any license.

I'm not in a position to judge that interpretation (IANAL and all
that), but I can say that this outcome would run directly counter to
everything that I've ever heard about open source licensing.

> I think also that people who submit modules for the Linux kernel
> also meet the second part of the definition: there is relatively
> little kernel code that was originally developed for a separate
> purpose outside the kernel.

It may well be that the derived work has  no use outside of the
kernel.  However the converse is not true - the kernel made perfect
sense before the inclusion of that derived work, and would continue to
do so if the derived work was removed.  Therefore I don't think that
this contribution should (or does) give you a copyright claim on the
rest of the kernel.

Cheers,
Ben

[John Cowan]

Arnoud Engelfriet scripsit:

> So I *think* any contributor can sue over infringement over his
> 'contributor version', independently of any other contributor.

Yes, this is fundamental.  Provided a derivative work is made under
license, the derivator is an author with all the copyright rights
of an author (except of course that he cannot restrain the author
of the original work from licensing new derivatives unless there is
a contract to that effect).

> > The FSF recommendations for how to apply the GPL are part of this
> > copyrighted document.  If you distribute the terms and conditions of
> > the GPL but omit including their recommendations, you have violated
> > the copyright on the GPL document.
>
> I guess we're reading "this license document" differently. You say
> it refers to the entire text of the HTML or text document on the FSF
> website. I say it refers only to the text between "GNU GENERAL
> PUBLIC LICENSE" and "END OF TERMS AND CONDITIONS", because only
> that text is part of the license.

You are both right, I think.  For the purpose of satisfying the GPL
requirement that "a copy of the GPL" be distributed with a work, it has
to be the whole thing from the title to the end of the recommendations.
But neither the Preamble nor the part labeled "How to Apply These Terms
to Your New Programs" are of legal effect.

--
They tried to pierce your heart                 John Cowan
with a Morgul-knife that remains in the         http://www.ccil.org/~cowan
wound.  If they had succeeded, you would
become a wraith under the domination of the Dark Lord.         --Gandalf

[Rick Moen]

Quoting John Cowan (cowan@...):

> It is, however, how patches are accepted and processed: patch authors,
> if the patch is substantial and is accepted into the original work,
> do meet the definition of joint authorship.

I doubt that.  I personally find Catherine and Eric Raymond's analysis
at http://www.catb.org/~esr/Licensing-HOWTO.html#id2790762 persuasive.
(Note that this is within Catherine's legal specialty.)  Quoting:

  For reasons we will discuss in detail, the "joint work" model probably
  does not actually apply to open-source projects. Rather, they look more
  like what the law calls "collective works", a new category created by
  the copyright-law revision of 1976. One of the purposes of the 1976
  revision was to scupper a line of bad case law that overextended the
  concept of "joint work", and courts have since shown a marked preference
  for narrowing the conditions of joint work even further than statute
  required.

  A "collective work" is a creative work of a group of individuals who do
  not share a common copyright in the result. Individual portions of such
  a work may (and often do) have copyrights, and there may also be a
  collective-work copyright on the work as a whole. The difference is
  practically relevant because, according to 17 USC 201 the holder of the
  collective-work copyright is legally privileged to set the distribution
  terms for the package as a whole (in the statute, this expressed
  negatively as a statement that the collective-work copyright holder
  acquires only those rights).

  In an unpublished case, Campbell vs. Lavery, 1997 U.S. App. LEXIS 754
  (9th Circuit), the court's finding turned specifically whether a
  collaboration between two programmers was a collective or a joint work.
  The court observed that the project could have been found to be either a
  collective or a joint work, depending on the intent of the programmers.
  They found it to be a collective work based on the fact that (a) one
  party had written only twenty lines of code, and (b) the behavior of
  both parties showed no intent that they be regarded as coauthors.

  Campbell vs. Lavery is appellate case law indicating that
  collaboratively-written software is a collective rather than joint work
  when programmers function in identifiable author/contributor roles. An
  Albany Law Review article from the same year, A Narrow View of Creative
  Cooperation: The Current State of Joint Work Doctrine[1], shows that
  Campbell vs. Lavery is no fluke. They cite numerous cases showing that
  courts have historically relied on the intent-of-coauthorship test to
  distinguish joint works from collective works, and continue to do so
  today. For the work to be joint, all coathors must show an intention to
  regard and credit each other as coauthors.

  This is, of course, not the case in most open-source projects. Community
  practice recognizes a strong distinction between people who contribute
  patches and co-authors. Indeed, community practice agrees with the
  intent requirement  normally one becomes a co-author on a project after
  applying for that status and having it granted by the existing
  author(s), in recognition of major and continuing contributions to the
  project.

  In fact, if the rights structure of a large project even becomes an
  issue, a court might well find it to be joint work with respect to core
  contributors but a collective work with respect to patchers. But this
  would make little practical difference. When we wrote earlier that
  registering copyright on an ordinary patch is probably pointless, we
  meant that it wouldn't convey a right to block distribution under either
  the joint-work or collective-work theory.


[1] http://cyber.law.harvard.edu/metaschool/fisher/joint/links/articles/lape.html

--
"Zees American words are too much.      Zen our culture you'll wrench;
With 'le parking' 'le weekend' & such.  Wiz our children we'll be out of touch."
Eef you anglicize French,                -- L'Academie Francaise in a nutshell