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Author Puts Article Online, Insists That Due To Copyright, You Cannot Link To It

(Mis)Uses of Technology

from the that'll-work dept

Fri, Nov 11th 2011 05:33pm -

BeeAitch points us to yet another misunderstanding of copyright law, though this one is more amusing than anything else. It comes from an article from 2005 written by one Dr. T. Matthew Ciolek, from Australian National University, and it’s apparently about “trade routes.” Honestly, it doesn’t matter what the article is about. What matters is that at the very top, it says:

Note: due to copyright restrictions this page may not be linked from other online pages.

Then, at the very bottom, it says:

Copyright (c) 2005 by Encyclopedia of Globalization. Grolier Academic. All rights reserved. This page may not be linked from other online pages.

And, in neither case is that accurate. You absolutely can link to it as I have just now (and above) and (what the hell) will do again (just for fun). Sorry Dr. T. Matthew Ciolek, that’s just not how copyright works. You are free to block anyone who comes via referrals from other sites (or block referrals from this site specifically). You’re also free not to post your content online, or to bar others from republishing it (recognizing certain legal exemptions). But, nothing in copyright law says that you can order people not to link to your work.

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Comments on “Author Puts Article Online, Insists That Due To Copyright, You Cannot Link To It”

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186 Comments
Anonymous Coward says:

Re: What's the point of the URL at the bottom?

I would hope the guy was referring to a piece of written work being reprinted in its entirety, and then the original link is stuffed at the end to supposedly represent due credit; though obviously the site the viewer read it on gets all the benefits of the content, without any legwork.

Which I believe is of dubious legality.

But honestly, couldn’t Masnick have used this thing called “email” and clarified the issue with Ciolek so we’d have the full story?

Then again, obtaining clarity wasn’t what Masnick’s post was really about, was it?

abc gum says:

Re: Re: What's the point of the URL at the bottom?

“I would hope the guy was referring to a piece of written work being reprinted in its entirety, and then the original link is stuffed at the end”

The linked to paper clearly claims, as indicated in this post, that links are not allowed. This post then points out that the claim is delusional. I’m not sure where your confusion originates, but possibly you are just making excuses for the person. Perhaps you could email them and clear up your confusion for yourself.

MrWilson says:

And the problem with this notice is that the uninformed will be afraid to link to the article.

I had a coworker bring me a similar situation where she wanted to quote a sentence from a website that was reporting some statistics that were relevant to the report she was writing and that she was going to post online. But she was wary of the copyright notice on the website which stated that any reproduction of any aspect of the website without express written permission was a violation of copyright laws and violators would be subject to civil and possibly criminal prosecution.

I laughed and explained to her about fair use, about how statistics themselves cannot be copyrighted, and about how the copyright laws are so fucked up that there’s no liability placed on parties that misconstrue what their rights are under copyright. They could put up a copyright notice that states that you owe them your first born if you copy any of their content and there’s no repercussions for such misrepresentations.

Anonymous Coward says:

But, nothing in copyright law says that you can order people not to link to your work.

Someone should inform Richard Stallman, because this is the exact assumption he makes in the GPL. A dirty little secret of the copyleft advocates is that many of the cases they claim their licenses cover go well beyond copyright’s bounds. What’s good for the goose…

Pitabred (profile) says:

Re: Re:

Wait… what? Of course they go over copyright’s bounds. The point of the GPL is that you get a lot MORE permissions if you follow the terms of the license. The L stands for license. If you don’t follow those terms, then things revert to standard copyright, and you’re a copyright infringer. It’s not terribly hard to understand.

Anonymous Coward says:

Re: Re: Re:

Oh Pita, you have been drinking the Kool-Aid, I fear.

According to the GPL and the FSF’s interpretation of it, if I write software 100% by myself and it links dynamically to someone else’s GPLed library, and then I give it to you, I have created a derivative work of that library and am bound by the GPL.

Even if I wrote 100% of the code myself. Even if I never give you a copy of the library.

Would you consider Mike’s article above a derivative work of Dr. T. Matthew Ciolek’s? After all, he linked to Ciolek’s article. You need Ciolek’s article to fully interpret Mike’s. Should Ciolek be allowed to control Mike’s ability to write or disseminate his article?

Anonymous Coward says:

Re: Re: Re:2 Re:

Also, it should be noted that you neglect the purpose of copy protection laws. The purpose isn’t so that one person can “be allowed to control Mike’s ability to write or disseminate his article?” it’s (or it at least should be to provide social benefit, in case you are referring to the laws in another country) to promote the progress of the science and the useful arts. For the law to let someone ban links seems antithesis to this endeavor and it seems to restrict free speech in a relatively direct manner.

The purpose of IP law is (should be) to expand the public domain and to expand freely available works. So if someone wants to release works only under the conditions that derivative works also be freely released the law should support this. After all, it sorta expands the public domain, or at least the spirit of the public domain. If someone else doesn’t like it, he doesn’t have to use those works and can find someone else’s work to use. No one is rightfully entitled to restrict others from freely copying and so the request to restrict such restrictions should be legally supported.

It should also be noted that there is a difference between free speech and software. Using, and linking to, someone’s work as part of fair use exists to ensure free speech and to ensure that our free speech isn’t hindered so that we can better express our positions and concerns, criticisms, or support for the positions of others. The importance of free speech, something that doesn’t apply with software so much, should take precedence over licensing when compared to something like software.

Anonymous Coward says:

Re: Re: Re:3 Re:

“No one is rightfully entitled to restrict others from freely copying and so the request to restrict such restrictions should be legally supported.”

and to expand on this, the principles behind the GPL don’t require government to exist. They can exist perfectly fine without government. The GPL simply says that people can freely copy as they please, no governance is necessary to govern this. It’s copy protection laws that require government to exist. and the government can simply place limits on what it will protect. In the case of the GPL, there is no need for the government to intervene and place any limits on anything, because the GPL doesn’t ask for any government to do anything since a government isn’t needed to allow people to freely copy one another. It’s the copy protection holder that’s asking for special government privileges and the government can decide which privileges it doesn’t want to grant. (well, the GPL does compel one to release the source code of derivative works, which may require government to enforce, and that aspect can be disputed separately since that’s not the aspect I’m disputing).

Anonymous Coward says:

Re: Re: Re:8 Re:

and fair use is outlined here

http://en.wikipedia.org/wiki/Fair_use

By reading that, it’s clear that fair use far more strongly applies to things like speech than code. The law says so. That’s what the law says. Sorry that you don’t get to decide what the law says and that the law doesn’t say exactly what you want it to say, but that’s tough.

“Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship.

…

17 U.S.C. ? 107
‘the fair use of a copyrighted work, … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; …’

Fair use, it’s the law.

Anonymous Coward says:

Re: Re: Re:7 Re:

So explain where the court had considered derivative works with respect to linking (in code or otherwise) and found that linking alone creates a derivative work.

You call me an IP maximist, yet it is Stallman and the copyleft brigade that want to use copyright law to tell me what I can and can’t do with my own code. I argue that no derivative work is created, so I need no fair use defense.

You also argue that Microsoft, if they so chose, could sue every creator of a Windows program for copyright infringement for creating and distributing unauthorized derivative works, and that they would win because no court has recognized a fair use defense with respect to code. I find your IP maximist position interesting.

Anonymous Coward says:

Re: Re: Re:8 Re:

“You also argue that Microsoft, if they so chose, could sue every creator of a Windows program for copyright infringement for creating and distributing unauthorized derivative works”

No, because that’s not how they license their operating system. If they did, then I might agree. In fact, if you look at things like Playstation 3, the courts have sided with Sony on this issue (though I would disagree with what the courts did here). When people try to hack things like Ti Calculators, courts might side with TI. Apple has had a past of very strict licensing with their operating systems and their early computers and processors and this has traditionally deterred people from adopting it. But if Microsoft did that, people will likely find another operating system to build code on.

Anonymous Coward says:

Re: Re: Re:10 Re:

I’m not saying I agree with IP laws, I’m just stating what they appear to be. There is a difference between agreeing with them and stating what they are. and your narrow, simplified, view is a strawman of what I said. Read that wikipedia article. There are fair use and other very limited exceptions under limited circumstances. and courts could decide either way on some issues, but based on past legal findings and what that wikipedia article and law says, it’s clear that code has a much weaker fair use defense.

Anonymous Coward says:

Re: Re: Re:12 Re:

“only through a fair use defense “

Fair use/free speech defense, something that code isn’t so much subject to.

I think one can also make a reasonable ‘promote the progress’ defense, though that hasn’t been tried in courts so much. One can also make a reasonable ‘citation’ defense, books cite other proprietary books all the time and I never seen a court rule against that. I think there is a legal difference between using (or, as you call it, linking to) someone’s code and simply referencing someone’s speech. So, no, fair use isn’t the only argument. You might personally classify them the same but, from a legal perspective, I would argue that ‘linking’ to someone’s code is simply using it whereas ‘linking’ to a source of information is simply referencing it (and I do think the law should make that distinction), which has traditionally been very accepted behavior long before the Internet and computers.

Anonymous Coward says:

Re: Re: Re:9 Re:

IOW, you’re wrong here too. If I built code on an operating system that didn’t license me to do so and if I distributed that code, there is a real possibility a court my side against me. If I circumvented the security measures of Playstation 3 (or some other proprietary device) so that I can build and install my own code and I distributed that code, that company might just sue and the courts might side against me. That’s a real possibility. So, you’re wrong.

Anonymous Coward says:

Re: Re: Re:8 Re:

“You call me an IP maximist, yet it is Stallman and the copyleft brigade that want to use copyright law to tell me what I can and can’t do with my own code.”

You can do whatever the heck you want with your code, but when you take ‘their’ code and use it, you simply can’t tell others what to do. Copy’right’ is government intervention. IP maximists want more government protectionism. Restricting how you can restrict others doesn’t require government since copying is something that doesn’t need government. So, indeed, you are the IP maximist, you are the one that wants more government protection.

Anonymous Coward says:

Re: Re: Re:9 Re:

I just want to distribute a binary of code I wrote and not the source. You’re saying I’m not allowed to do that?

Or maybe I do want to distribute the source, but only to one partner under a contract that doesn’t let them distribute it further. You’re saying I should not be able to enter into that contract with a willing party?

Anonymous Coward says:

Re: Re: Re:12 Re:

I put the word ‘contract’ in quotes, the point is that it’s some form of agreement. By using the code you implicitly agree to certain terms. and just like the law considers it an agreement/license, when I buy software or content, that I not redistribute that content, this should be no different. You either want IP law or you don’t, but you shouldn’t just accept it when it suits you.

Anonymous Coward says:

Re: Re: Re:13 Re:

You either want IP law or you don’t? What does that even mean? The strawiest of straw men I have ever seen.

Ignoring that bit of nonsense, “implicit agreement” my ass. What I am concerned about are my legal obligations and constraints. Specifically, what can Ciolek prevent Mike from doing and what can Stallman prevent me from doing.

Ciolek says that Mike cannot link to his article. So they have an implicit agreement and Mike should honor that?

Anonymous Coward says:

Re: Re: Re:14 Re:

“What I am concerned about are my legal obligations and constraints. “

Addressed in my next post. The GPL license is a legal obligation because the law sees licenses as something that everyone must follow. The law doesn’t see simply referencing other works as requiring a license and a link is simply a reference to someone else’s work.

Anonymous Coward says:

Re: Re: Re:15 Re:

When someone makes a bibliography or a works cited, is that an IP violation? I think not. Then again, perhaps it’s not because it’s considered fair use, and come to think of it, you could make that argument. I think there is a legal difference between using someone’s GPL code and simply linking to or citing someone’s work. I guess that kinda does fall under fair use, but that doesn’t necessarily mean Mike is wrong, since he mostly just said that linking is OK.

Here is more on linking.

“the court in Ticketmaster v. Tickets.com found that links were not infringements of copyrigh”

http://www.chillingeffects.org/linking/faq.cgi

So, if I intentionally linked to infringing material to induce infringement, then I can get in trouble. but if you, the copy privilege holder, willingly put a website up and I linked to it, then I’m good. Every situation is different and to lump code with hyperlinks is a bit disingenuous.

and if you still think you’re right

“On about Aug 03, 2010, BusyBox won triple damages of $90,000 and lawyers’ costs and fees of $47,865, and possession of “presumably a lot of high-def TVs” as infringing equipment in the lawsuit Software Freedom Conservancy v. Best Buy, etal., the GPL infringement case noted in the paragraph above.[29]”

http://en.wikipedia.org/wiki/BusyBox#GPL_lawsuits

IOW, the law disagrees with you. The GPL is enforceable, but hyperlinking is generally OK.

Anonymous Coward says:

Re: Re: Re:16 Re:

and if you still don’t believe me, read

http://en.wikipedia.org/wiki/GNU_General_Public_License#The_GPL_in_court

The whole section is worth reading, but in particular

“the court noted that “the GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers”.[55]”

IOW, the promote the progress argument and the purpose of IP law argument is, indeed, a valid one that courts do consider.

Anonymous Coward says:

Re: Re: Re:16 Re:

I am not making, nor have I ever made, the argument that the GPL is unenforceable in general. Stop putting words in my mouth.

What I said was, if I write code on my own that dynamically links to a GPLed library, and then give it to you in source or binary format, and I never give you the GPLed library at all, there is no part of copyright law that obligates me to do anything. The GPL cannot be enforced on me or my code because I have created no derivative work.

Stallman and the FSF want an extraordinary, some would say “IP maximist,” definition of derivative work to be applied to me that would make my code a derivative work of the library even if I just refer to it and I distribute no part of the library. I point out that this Maximist position is very similar to the one taken by the author of the article Mike linked.

Worse yet, the ramifications of such a maximist position would be disastrous for the software industry and the open-source movement.

I am arguing that for the same reasons that Ciolek’s IP maximist views should not be tolerated, neither should Stallman’s.

Anonymous Coward says:

Re: Re: Re:17 Re:

“that would make my code a derivative work of the library even if I just refer to it and I distribute no part of the library.”

Certain aspects of your code require the library to work. But he’s not restricting you from developing and redistributing the works, he is only restricting you from restricting others. That’s hardly a ‘maximist’ approach, its’ a minimist approach, since the freedom for others to copy and redistribute your work exists outside of copy protection laws and outside of government (aside from forcing you to distribute your source code, but that’s hardly a maximist approach when compared to the desire to lock your code down under licenses that use the law to restrict unpaid for redistribution).

Anonymous Coward says:

Re: Re: Re:18 Re:

So it’s OK for Stallman to be allowed to expand the definition of “derivative work” to insane levels, provided he has a IP minimalist agenda in the end?

Furthermore, Stallman gets to do this, but nobody else (e.g., a proprietary software vendor) does because they have a different agenda?

Guess the ends justify the means but only when it comes to Free Software.

Anonymous Coward says:

Re: Re: Re:19 Re:

“So it’s OK for Stallman to be allowed to expand the definition of “derivative work” to insane levels, provided he has a IP minimalist agenda in the end?”

He’s not ‘expanding’ it, he’s merely using the already existing definition.

“Furthermore, Stallman gets to do this, but nobody else (e.g., a proprietary software vendor) does because they have a different agenda?”

Who said that? If it were up to me, nobody would have copyright and the GPL won’t be needed. I would abolish IP, or substantially limit its scope and time length.

Anonymous Coward says:

Re: Re: Re:20 Re:

If proprietary vendors can say the use of their work in other works against their contract agreements constitutes an infringing violation, then Stallman can say the use of his work in other works against the GPL terms are also a violation. and merely ‘linking’ to the works are a use of his works, since certain aspects of your work won’t work without his works, so, effectively, those who want to use those aspects must use GPL code. It’s not an insane extension of what’s already there, hardly, and the comparison to this and web-linking is weak at best.

Anonymous Coward says:

Re: Re: Re:21 Re:

IOW, your work benefits from GPL code and hence you should follow GPL rules. Just like if someone pirates Microsoft word, they benefit from such software, and the current laws say they should follow Microsoft’s license. I’m not saying I agree with IP law, but I don’t think we should allow corporations to both freely benefit from GPL code and to deny others the ability to freely benefit from their code that benefits from GPL code. There is nothing insane about such a position. Corporations can’t have it both ways. You either use GPL code or you don’t, using GPL code under the pretext that the libraries can be separately downloaded but aren’t included is a cheap way of benefiting from the code without offering anything in return. The whole objective of GPL code is that if you want to benefit from the code and distribute it, you must offer something back, which is to allow others to freely do what they want with the code. Corporations can’t have it both ways, that would be unreasonable and unfair. If the corporation doesn’t like it, it can simply find someone else’s code to build upon or build its own code. Just like they would tell me to do if I wanted to use Microsoft word without following its restrictive licensing terms and paying.

Anonymous Coward says:

Re: Re: Re:21 Re:

Again, a contract is not a license. By choosing to formulate the GPL as a pure license and not a contract, the FSF made it so that the GPL can only permit things that would otherwise be restricted (this is the nature of a license).

Since the GPL is not a contract, the question is: what law prevents me from distributing my code in binary form only, or alongside a restrictive contract of my own? Stallman and the FSF say “copyright law.” But it’s my code. My copyright.

“Ah, they say, but your code is a derivative work of our code!”

And there lies the question. Why is my work derivative of theirs?

Because it incorporates their code? No, it doesn’t.
Because it requires their code to run? That is tougher. Consider the GPLed math library FFTW. The proprietary Intel MKL library implements identical interfaces, to the point where I can dynamically link to either one without changing a byte of code. Which is my program a derivative of, then?

Further, if “I need X to run, therefore I am a derivative of X” has utterly disastrous consequences. Everything becomes a serivative of everything else. Do PC BIOS vendors then become infribged upon by every piece of PC software?

You argue that proprietary vendors prohibit linking, but not using the same legal mechanisms the GPL does. They use licenses (which, like the GPL, may be limited in scope themselves by derivative works boundaries). They sometimes use clickwrap or shrinkwrap agreements, which are in a legal gray area but may be contracts and not licenses.

Further, this has not been well-tested in court. The MMOGlider case is informative. There, the lower court initially agreed that MMOGlider violated copyright (and it probably did more than linking), but the appeals court reversed this, stating that copyright was NOT violated, only the EULA, which was a contract. The GPL is explicitly not a EULA.

Anonymous Coward says:

Re: Re: Re:22 Re:

“Do PC BIOS vendors then become infribged upon by every piece of PC software?”

When Sony licensed their PS3, they decided that they can restrict third party software. They licensed it under those terms (and when people decided to jailbreak the PS3, the courts sided with Sony). Same thing with Xbox.

http://www.techdirt.com/articles/20101022/04205511542/jailbreaking-your-iphone-legal-jailbreaking-your-xbox-3-years-in-jail.shtml

Apple tried to claim that jail breaking their products is a violation (and I remember Motorola claiming something similar as well). So the answer is, it depends on the licensing terms. It’s not infringement if the license permits it. But if the license is too restrictive, who’s going to buy the product?

http://www.techdirt.com/articles/20090213/0326103758.shtml

Anonymous Coward says:

Re: Re: Re:23 Re:

The jailbreaking issue is primarily about whether the DMCA was violated. Not an issue here at all and I have no idea why you keep bringing it up except to cloud the issue.

Without technological protection measures, which would probably not be permitted by the GPL either way, the DMCA doesn’t matter.

Beyond that, it depends largely on what is being modified, and who is doing the modification to see what exclusive right of copyright would be violated. To my knowledge none of this has been fully adjudicated.

Anonymous Coward says:

Re: Re: Re:24 Re:

“Not an issue here at all”

No, it is an issue. When you ask the question, “Do PC BIOS vendors then become infribged upon by every piece of PC software?” No, because they license their hardware in such a way that allows third parties to write software on it, unlike how Sony licenses their Playstation 3. See.

Anonymous Coward says:

Re: Re: Re:25 Re:

Show me the license you have from your BIOS vendor that permits you to create derivative works of their BIOS to run programs on your computer. I’ll wait. If you don’t find it, consider the possibility that this does not exist because the idea that using a program constitutes creation of a derivative work is absurd to everyone but you and perhaps Richard Stallman.

Sony alleged DMCA violations that led (at least) to copyright infringements of firmware. As far as I know Sony never argued that the violation was just calling existing code – it was the creation of modified versions of code. This is completely different. Also, the Sony case settled, so it is totally unclear they would have prevailed on that argument. Like Stallman, they can make whatever expansive arguments they want about the bounds of copyright law. Doesn’t make them true.

Anonymous Coward says:

Re: Re: Re:26 Re:

“Show me the license you have from your BIOS vendor that permits you to create derivative works of their BIOS to run programs on your computer.”

There are all sorts of licensing agreements behind the scenes.

“The vast majority of PC motherboard suppliers license a BIOS “core” and toolkit from a commercial third-party, known as an “independent BIOS vendor” or IBV. The motherboard manufacturer then customizes this BIOS to suit its own hardware.”

http://en.wikipedia.org/wiki/BIOS

Bottom line, there is nothing in the licensing that prevents people from creating software on their computers.

Regarding the sony cases, the judge largely sided with Sony in most cases.

http://www.techdirt.com/articles/20110127/17101112863/sony-ps3-hacker-gagged.shtml

Anonymous Coward says:

Re: Re: Re:27 Re:

Bottom line, there is nothing in the licensing that prevents people from creating software on their computers.

According to you, copyright law itself prevents this. So the licensing has to explicitly permit it. And you’re the one running programs on the computer, so an upstream license between your board vendor and your BIOS vendor grants you no rights. But let’s assume there is one: then, you should be able to show me the license from your motherboard vendor allowing you to create derivative works of the BIOS as per their agreement with the BIOS vendor, right?

Of course it’s rapidly become clear you’re just reading three sentences from Wikipedia, deciding that sounds good to you, and making wildly bullshit legal claims with no understanding of the content or mechanism of the law.

At the same time, you have advocated massive expansion of the scope of copyright law, increased “induced infringement” scope, and the ability for software vendors to create and enforce tgeir own interpretations of copyright law in accordance with their agendas.

Bravo! I have leaned the secret of making IP minimalists betray their entire belief system. Offer them monopoly privileges to use for copyleft, and then point out that those privileges may be limited. They’ll be out there picketing for broader monopolies post-haste.

Anonymous Coward says:

Re: Re: Re:27 Re:

Bottom line, there is nothing in the licensing that prevents people from creating software on their computers.

According to you, copyright law itself prevents this. So the licensing has to explicitly permit it. And you’re the one running programs on the computer, so an upstream license between your board vendor and your BIOS vendor grants you no rights. But let’s assume there is one: then, you should be able to show me the license from your motherboard vendor allowing you to create derivative works of the BIOS as per their agreement with the BIOS vendor, right?

Of course it’s rapidly become clear you’re just reading three sentences from Wikipedia, deciding that sounds good to you, and making wildly bullshit legal claims with no understanding of the content or mechanism of the law.

At the same time, you have advocated massive expansion of the scope of copyright law, increased “induced infringement” scope, and the ability for software vendors to create and enforce tgeir own interpretations of copyright law in accordance with their agendas.

Bravo! I have leaned the secret of making IP minimalists betray their entire belief system. Offer them monopoly privileges to use for copyleft, and then point out that those privileges may be limited. They’ll be out there picketing for broader monopolies post-haste.

Anonymous Coward says:

Re: Re: Re:28 Re:

“So the licensing has to explicitly permit it.”

Agreements can be implied, they don’t always have to be express. If Sony and various router and phone manufacturers can restrict what one can do on ‘their’ hardware, then bios manufacturers can do the same. and hardware generally isn’t subject to copy protection laws anyways. The software has downstream licenses in such a way that, when I buy the computer or motherboard, there exists a reasonable expectation that I may build and install software on it. Not everything has to be express to be an implied agreement.

“Of course it’s rapidly become clear you’re just reading three sentences from Wikipedia, deciding that sounds good to you, and making wildly bullshit legal claims with no understanding of the content or mechanism of the law.”

It’s hardly a wild claim given our current laws. If you think so, why don’t you take on the challenge to violate the GPL and see what happens?

Anonymous Coward says:

Re: Re: Re:26 Re:

“it was the creation of modified versions of code.”

It was the mere creation of code that allows the PS3 to do what Sony doesn’t want it to do that was a violation, and even posting a video showing people how to jailbreak it was considered a violation.

http://www.techdirt.com/articles/20110207/23320513000/sony-demanding-identity-anyone-who-saw-ps3-jailbreak-video-youtube.shtml

Remember, the jailbreak code was open source. So no one had to modify Sony code or create modified code, they created their own separate code and published it on the net. Yes, that code needed Sony’s code to operate, but your code needs GPL code to operate just as well.

Anonymous Coward says:

Re: Re: Re:20 Re:

There is no clear definition of “derivative work.” There is some case law that helps to interpret it in non-software domains. It has never been tested in court with respect to dynamic linking in software. The existing case law for other domains indicates to me that for the case of dynamic linking of software to create derivative works, a substantial expansion in interpretation would be required.

Moreover, if you got your wish and copyright were eliminated, software vendors could make modifications to the now public-domain code, release only the binaries, and keep the code fully private, restricting its distribution through contracts, trade secret law, or both.

Anonymous Coward says:

Re: Re: Re:21 Re:

“Moreover, if you got your wish and copyright were eliminated, software vendors could make modifications to the now public-domain code, release only the binaries, and keep the code fully private, restricting its distribution through contracts, trade secret law, or both.”

I’m not sure I agree with trade secret laws, but the rest of what you said I’m fine with.

First of all, as it stands now, there is no public domain code for them to build upon. So copy protection abolition would be better in this regard.

Secondly, I have no problems with vendors keeping their source code private, they already often do that anyways, even with copy protection laws. So what’s your point?

Anonymous Coward says:

Re: Re: Re:21 Re:

“The existing case law for other domains indicates to me that for the case of dynamic linking of software to create derivative works, a substantial expansion in interpretation would be required.”

I hardly think it would be a substantial expansion. For example,

“a few courts have now held that a hyperlink violates the law if it points to illegal material with the purpose of disseminating that illegal material: “

http://www.chillingeffects.org/linking/faq.cgi

So, under limited circumstances, merely hyperlinking can be illegal. I would argue that it would hardly be a substantial expansion to say that this is one of those situations, since this sort of code linking undermines the purpose of the law and the license.

and courts have ruled that linking that induces infringement (ie: links to circumvention tools or links to videos that help teach people how to circumvent) can be in violation.

Other examples

” In the DeCSS case, Universal v. Reimerdes, the court barred 2600 Magazine from posting hyperlinks to DeCSS code because it found the magazine had linked for the purpose of disseminating a circumvention device. (See Anticircumvention (DMCA).) The court ruled that it could regulate the link because of its “function,” even if the link was also speech.
In another case, Intellectual Reserve v. Utah Lighthouse Ministry, a Utah court found that linking to unauthorized copies of a text might be a contributory infringement of the work’s copyright. (The defendant in that case had previously posted unauthorized copies on its own site, then replaced the copies with hyperlinks to other sites.) “

So it would hardly be a substantial expansion. Every case is different, there is no hard fast rule to linking and infringement. Your code linking could be considered infringement because it induces what is effectively an infringement, the use of GPL code working with proprietary code. If you build your code using GPL code and you included the code, that’s an infringement, just like if someone included a Microsoft word document and included infringing copies of Microsoft word with the document (though Microsoft’s license allows you to freely distribute Word documents by themselves, otherwise, no one would buy word :). Writing code with GPL code, deleting the GPL code, and encouraging others to separately download it has almost the same exact effect as writing code and distributing it with GPL code. When you write your code, you had to use GPL software to write your code. You couldn’t write and test your code without such software. So when you do so, you must do so under their license, just like I have to follow Apple’s or Sony’s restrictive license when I use their software or hardware or their PS3. and the courts have ruled in favor of Sony when others tried to write separate code for the PS3. If Sony can limit what others can do with the PS3 and if they can limit the code they can write and redistribute, then the GPL can limit how its code is used just as well. It’s hardly a stretch. People can’t even redistribute their own code that they used to write for the PS3 or for a TI calculator or whatnot.

Anonymous Coward says:

Re: Re: Re:22 Re:

and writing and distributing code to jailbreak a phone can also be considered infringement.

Likewise, trying to write GPL based code and encouraging people to download the code separately is merely a disingenuous circumvention of the GPL. It allows you to benefit from the GPL without following its terms.

Anonymous Coward says:

Re: Re: Re:23 Re:

By distributing my code separately and letting the user link it, I am benefitting from the GPL but I am not violating its terms.

The GPL’s terms apply to (and can necessarily only apply to) derivative works. Use of some library that I neither incorporate nor distribute creates no derivative work.

Further, linking proprietary and GPL code is not an infringement. The GPL allows this, although it is not clear that loading a program into computer memory is restricted by copyright law at all. The GPL controls only distribution. I therefore cannot be inducing infringement by telling users to do something that is perfectly OK.

I am happy to see Techdirtophiles are arguing in favor of increased “induced infringement” by the way. Very nice.

Anonymous Coward says:

Re: Re: Re:24 Re:

“I am benefitting from the GPL but I am not violating its terms.”

If you are not violating its terms, then what’s the problem? If you are violating its terms, then there is a problem.

“I am happy to see Techdirtophiles are arguing in favor of increased “induced infringement” by the way. Very nice.”

I’m not Techdirtophiles and I’m not making an induced infringement argument. I’m merely pointing out that it won’t be the huge stretch (from our current laws) that you make it out to be. Every situation is slightly different and the courts treat them differently from case to case.

Anonymous Coward says:

Re: Re: Re:25 Re:

If you are not violating its terms, then what’s the problem? If you are violating its terms, then there is a problem.

The problem is that the bounds of the license are wholly dependent upon the ambiguous definition of “derivative work” in copyright law. Thus, the license is ambiguous.

The FSF and Stallman have a very broad opinion about what the bounds should be. As drafters of the license and spokespeople for it, their interpretation influences the license’s users.

Only courts and lawmakers can resolve the ambiguity. Neither has. I believe that the FSF position is bogus, causing fear, uncertainty, and doubt and is inhibiting the freedoms of others to develop and release software in the manner of their choosing.

If Mike is going to make fun of this guy for his overbroad interpretation of copyright, why not point out and rectify a far more meaningful and pernicious example?

Anonymous Coward says:

Re: Re: Re:26 Re:

“I believe that the FSF position is bogus, causing fear, uncertainty, and doubt and is inhibiting the freedoms of others to develop and release software in the manner of their choosing.”

No, your belief inhibits GPL developers to release software in the manner of their choosing. But I guess this only applies when it benefits big corporations.

“why not point out and rectify a far more meaningful and pernicious example?”

I agree that it is a meaningful example and the rectification should be that if you make works that use (or, in your terms, ‘link to’) GPL works, your works should be released under the GPL (provided that this is what the GPL requests, of course) and the law should mandate it.

Anonymous Coward says:

Re: Re: Re:27 Re:

I agree that it is a meaningful example and the rectification should be that if you make works that use (or, in your terms, ‘link to’) GPL works, your works should be released under the GPL (provided that this is what the GPL requests, of course) and the law should mandate it.

The GPL requires that derivative works be distributed under the GPL. It imports the definition of derivative work from copyright law. Thus, it is ambiguous. Even if it clarified its position, it would be limited by the bounds of copyright law.

Its creators interpret the ambiguity ultra-broadly in an attempt to exploit that ambiguity to further their own agenda. If you give them the power to set the scope unilaterally, you must also give that power to Sony and Microsoft and Apple, who will probably make you very unhappy with the breadth of their interpretations. You really want to make the law “you know, whatever the guy who wrote the license meant?”

Anonymous Coward says:

Re: Re: Re:26 Re:

“I believe that the FSF position is bogus”

I believe your interpretation is a bogus attempt to undermine the GPL so that you can benefit from it without sacrificing anything of your own and without sacrificing your copy protection privileges. You are inhibiting the freedoms of others to freely copy the works that you built on top of the works of others.

and no one is entitled to the freedom of requiring others (ie: government, service providers) to police, abide by, and enforce their monopoly wishes.

Anonymous Coward says:

Re: Re: Re:27 Re:

I believe your interpretation is a bogus attempt to undermine the GPL so that you can benefit from it without sacrificing anything of your own and without sacrificing your copy protection privileges. You are inhibiting the freedoms of others to freely copy the works that you built on top of the works of others.

Yep. Except it’s not bogus, it’s perfectly legal. Everyone here is always clamoring for fewer IP laws and greater limitations on them. Well, here’s a good one. And now you don’t like it because it prevents you from exerting control over others with the force of law. As I noted, giving the power to have copyright mean whatever he wants to Stallman means giving it to Sony also.

and no one is entitled to the freedom of requiring others (ie: government, service providers) to police, abide by, and enforce their monopoly wishes.

Including Stallman and the FSF. They want a monopoly on my code to enforce their agenda on me and my behavior. They don’t get it. Wish granted.

Anonymous Coward says:

Re: Re: Re:28 Re:

(and the bios hardware isn’t covered by copy protection anyways, it’ll be covered by patents if anything. The software might be, but most of that is all licensed accordingly. Same thing with routers, there are all sorts of licensing deals behind them. Just like certain aspects of the software/firmware for the WRT54GS router is licensed under the GPL. Other routers, not so much, and if you tried to tinker with them and release code, you might very well get in trouble for violating various terms).

Anonymous Coward says:

Re: Re: Re:29 Re:

IOW, since you seem to be retarded and you need this to be repeated over and over and over, laws aren’t needed to enforce the freedom to freely copy. Laws are needed to restrict the freedom to copy. One can’t use the force of law to enforce the freedom to copy since law isn’t needed for that. Enforcing the freedom to freely copy is enforcing the absence of law and its force. The force of law is used to restrict the freedom to copy.

Anonymous Coward says:

Re: Re: Re:29 Re:

Laws aren’t needed to ‘enforce’ the absence of copy protection. Laws are needed to enforce copy protection.

Not so. You forget (or are ignorant of) your history.

Stallman invented copyleft because he only had a binary of a printer driver he wanted to screw with. He could not modify it without the source, and was mad that you could distribute the binary without corresponding source code.

In the absence of copyright law, Stallman’s situation would have been…identical. The software vendor could have kept the source proprietary and not distributed it at all. To control employees going rogue and distributing it, they could use simple contracts – which they probably do anyway. You want to abolish contract law, too?

Stallman used the monopoly force of copyright to get a demand met: the distribution of code. No law, no mandate. And any limits on copyright apply to everyone – him included.

Anonymous Coward says:

Re: Re: Re:30 Re:

The source code release aspect wasn’t the aspect I was arguing, as mentioned above in my previous posts. See where I said

“well, the GPL does compel one to release the source code of derivative works, which may require government to enforce, and that aspect can be disputed separately since that’s not the aspect I’m disputing”

But, OK, if you’re so confident that you’re right, why not put your money where your mouth is. When Mike is convinced that he’s right, what does he do? He actively defies the wishes of the opposition. When asked to take down content and he believes he doesn’t legally have to, he doesn’t. When asked not to link to a site, what does he do? He links to it, on purpose, just because a legal defiance (and to make a point, that it is, or at least should be, legal). When threatened with all sorts of legal threats, what does he do? He ignores them because he believes himself to be legally in the right.

and IP maximists have often tried to argue that people would be more than willing to challenge bogus legal infringement threats (ie: when it comes to these mass Righthaven anti-piracy suits that could potentially target non-infringers) if the alleged infringer didn’t infringe because, you know, litigation isn’t such a deterring process. So the same goes for you.

So why don’t you use, or link to, GPL (not LGPL) code and release your proprietary code without source code. Do it. Link to it here. When someone then freely uses your code without paying, sue them. and don’t settle. Let the judge decide. Post your code here and I’ll notify the FSF and what have you to sue you just as well. and don’t settle, let the judge decide. Put your money where your mouth is. Mike would, and in the past, he has, by ignoring all sorts of legal threats he thought had no merit. Mike is willing to do it. Why don’t you, if you’re so confident that you’ll win and that the GPL’s interpretation is a huge stretch. After all, the GPL authors are just FUD. If you’re so confident that you’re right and you stand on principle, why not back those principles up with action? Since you have the opportunity to initiate the first lawsuit, you even have more leverage to choose the initial court, which could mean you might even win the initial ruling (but could lose on appeal).

Anonymous Coward says:

Re: Re: Re:24 Re:

“By distributing my code separately and letting the user link it, I am benefitting from the GPL but I am not violating its terms.”

Isn’t it the point of this discussion that doing what you just said would be a violation of the GPL (and you are arguing that it wouldn’t/shouldn’t be a violation of law)?

Anonymous Coward says:

Re: Re: Re:22 Re:

and, besides, an expansion to copy protection law would be something that requires more government intervention. Requiring you not to restrict others from copying doesn’t require more government intervention since copying is something that can occur without government. So it’s hardly an expansion of law since a lack of law would allow free copying anyways.

Anonymous Coward says:

Re: Re: Re:17 Re:

#73, you still show an obvious disregard to the facts of the matter, whether you distribute the library or not, by having dynamically linked to it, your software -will not function- without utilizing the capabilities of the library. This argument has been had many times, and many times people like yourself have been proven wrong. What you’re discussing has -no relevance- to hyperlinks. Period. It is completely unrelated.

Linking to a library causes it to be loaded into the same memory space as your code, and the only reason to link to a library is to utilize and execute the code contained in it. You create a derivative work because the original code -exists in your program- at run time. If you don’t like it, don’t use GPL’d libraries, there are commercial alternatives, or – as you keep saying, you could simply “write 100% of the code yourself,” in which case you would not link to any GPL libraries.

How about you stop using the word “link” when referring to libraries, and start using the more descriptive phrase “dynamically load code into the same memory space,” since you can’t seem to get around the fact that “linking” in a compiler does not do what you think it does.

Anonymous Coward says:

Re: Re: Re:15 Re:

You’re talking out of both sides of your mouth.

Is Mike’s article a derivative work of Ciolek’s or not?

If so, he needs a fair use defense or a license. You also disagree with Mike that there is nothing in the law preventing linking, and that some forms of linking that fail the four-factor test may be infringing.

If not, he needs neither and it is unclear why you keep blathering on about fair use.

Anonymous Coward says:

Re: Re: Re:16 Re:

“Is Mike’s article a derivative work of Ciolek’s or not?”

You can call it that, but it’s not an infringing derivative work. Courts have ruled that hyperlinking is fine, but violating the GPL is not. Period. That’s the law whether you like it or not. I don’t care what you call it, linking, derivative works, etc… the point is that what Mike did is legal. The courts said so. Violating the GPL is not legal and the courts agree. Period. That’s the bottom line, like it or not, it’s what the courts have decided. What Mike did = legal. Violating the GPL = illegal. The courts agree.

Anonymous Coward says:

Re: Re: Re:16 Re:

“You’re talking out of both sides of your mouth. “

No, you’re wrong. Period. You are wrong. Mike is right. The courts say that Mike can link. The courts say that GPL violations are a tort.

“What I am concerned about are my legal obligations and constraints. “

and I provided you with your legal obligations and constraints, with court cases to back them up. Courts have enforced the GPL. Courts have said that hyperlinking is OK. Those are your legal obligations and constraints. It’s what the courts have said. Bottom line, you’re wrong.

Anonymous Coward says:

Re: Re: Re:17 Re:

Stop dancing around the question. Legally, what gives Mike the right to link? What was the court’s interpretation of the law that permits that? I don’t want to know what arguments can be theoretically made about it, I want facts. What court has said that linking is allowed under what specific rationale?

Anonymous Coward says:

Re: Re: Re:18 Re:

First of all, did you not read the rationale for the GPL enforcement.

“the court noted that “the GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers”.[55]”

IOW, the rational is partly what I said above.

As far as the linking case

“The court found that Tickets.com only republished the uncopyrightable factual data in Ticketmaster?s site on to Tickets.com.”

http://ilt.eff.org/index.php/Ticketmaster_v._Tickets.com

Mere hyprlinks are not protected.

Anonymous Coward says:

Re: Re: Re:13 Re:

(and I do think that one can use GPL code without actually agreeing to it, but that’s not the law. If you come to an agreement with your friend that you will give him a video in return for his secrecy of the video and your friend widely distributes the video, then you should only have your friend to sue for violating his end of the bargain. Others who obtain and distribute the video agreed to nothing and so they should not be liable for anything. but that’s not what the law says. The law sees licenses as terms that everyone must follow regardless. Again, you either agree with this or you don’t, but you can’t just say that these licenses only apply to Microsoft’s and Apple’s code when they want to restrict copying yet they don’t apply to GPL code when they want to restrict how you restrict copying. But linking to someone’s webpage is simply referencing their work, which I would argue is seen differently by courts and has been accepted long before the Internet and modern computers).

Anonymous Coward says:

Re: Re: Re:3 Re:

and, sure, an article that links to other articles was inspired and is partly a ‘derivative’ work of those other articles. The point is that this doesn’t mean that all derivative works should be subject to copy protection restrictions just because an IP holder of an original works want them to be. Again, you neglect the (alleged) purpose of IP law. You also neglect fair use, which applies more to speech than to code.

Anonymous Coward says:

Re: Re: Re:4 Re:

All derivative works are subject to copyright protection. That’s the law.

Your argument about the purpose of copyright law does not give Richard Stallman permission to tell me what I do or do not have to do with code I wrote.

If I invoke fair use, then I can distribute my code however I want. Source, binary, obfuscated, encrypted, or otherwise. You agree?

Anonymous Coward says:

Re: Re: Re:7 Re:

Not at all, though it should be okay to stage an active protest against that law and inform others of your opinion in an effort to raise public awareness of what you perceive as a flaw. And I believe changes to the law should be based on popular choice, not decided in secret. For better or worse the public mass should have a say in the governing of their own country.

Hmm, let me add a correction here: …Unless the law was enacted in such a way as to violate other laws – in my opinion that should invalidate the secondary law until such time as the terms are corrected.

Anonymous Coward says:

Re: Re: Re: Re:

#13 AC: you are confusing “linking” re: hyperlinks and URLs, with “compiler linking,” which is an entirely different subject, sharing little more than a common jargon.

When you “link dynamically” to a library in software, it is loaded into the same memory space as your program and executed when needed. (Vs. statically – having embedded it directly.) There is little difference in this case between static and dynamic linking from the end result – the code is brought into your program’s memory space and executed just like the rest of the code you may or may not have written.

Now, to be honest – your argument is fallacious – as your software isn’t written 100% by yourself. Why did you link to the library in the first place? Why, to utilize its code as part of your program to create your software solution. You didn’t have to use someone else’s code for it, but you chose to take the short-cut to the solution they offered you. You don’t -have- to do anything, and your software isn’t bound by any terms, until you decide that you want to share your new solution with someone that was based on the GPL’d solution you borrowed, directly, in your code. Then, all the GPL says is that since you found it so useful, and used the software (directly, I might add, in your own software) to solve your problem, you must provide the same liberties to anyone you give it to.

So, when you get around to writing 100% of your own software, you’ll find that you don’t link to anyone’s libraries but your own.

A hyperlink is just an address on the internet.

Anonymous Coward says:

Re: Re: Re:2 Re:

I think the main difference is that it’s difficult to discuss (ie: criticize, support, etc …) someone else’s work without referencing it. Copy protection laws never restricted referencing the speech of others. It may restrict things like non-speech images, video, etc.. to the extent that they are aesthetic and non-speech related in nature. Code isn’t so much speech related either and so it’s not subject to the same fair use treatments as speech, since speech serves a different purpose and is different in nature and may require one to reference the works of another more directly to ensure that their position is being properly represented in your criticism or analysis. With code, one can write his own since your code isn’t an expressed analysis of someone else’s code for the sake of supporting or criticizing it.

Not that I necessarily support copy protection laws for code, pictures, movies, etc… either.

Anonymous Coward says:

Re: Re: Re:2 Re:

When dynamic linking is done, I don’t combine anything. The user does. If I give you an article about Star Wars, and it says “go get your own copy of the movie and watch at 24:14. Now imagine a Tauntaun in the scene.” Is my article a derivative work of Star Wars?

Or, I write a program that runs on Windows. Is my program a derivative work of Microsoft’s?

Anonymous Coward says:

Re: Re: Re:3 Re:

Yes on both counts since they would be worthless without the primaries.

Your article would be meaningless even to you without the existence of the specified scene, and your program would not even be programmable without the underlying operating system. The fact that Microsoft choose not to restrict your use of their code does not mean your work is not derivative – it is still built on their work.

The fact is that licensing rules apply to any library – if you don’t like the licensing agreement offered by one then don’t use that particular one – there are plenty of others out there that will happily sell you a more restrictive license, or you can build your own.

abc gum says:

Re: Re: Re: Re:

“According to the GPL and the FSF’s interpretation of it, if I write software 100% by myself and it links dynamically to someone else’s GPLed library, and then I give it to you, I have created a derivative work of that library and am bound by the GPL. Even if I wrote 100% of the code myself. Even if I never give you a copy of the library.”

Citation please

Anonymous Coward says:

Re: Re: Re:3 GPL/LGPL

To all you people going back and forth about linking to GPLed code: This is why most libraries are licensed under LGPL (or some other more permissive Open Source license), rather than straight GPL.

I’m not sure why we even got off on this tangent; an HTML link and linking to an object code library are completely different things. Just because they both happen to use the word “link” doesn’t mean they are equivalent.

Anonymous Coward says:

Re: Re: Re:4 GPL/LGPL

My argument is that in the case of dynamic linking, the GPL and LGPL are effectively equivalent, even though Stallman and the FSF are willing to invent lavish IP maximalist interpretations of the law to convince you otherwise.

Regarding HTML linking and software linking: there are clear parallels. There is the issue of what constitutes a derivative work. There is the issue of what kinds of references are permitted under fair use.

Regarding tangents, who the fuck died and made you the discussion moderator?

Anonymous Coward says:

Re: Re: Re:5 GPL/LGPL

They’re not equivalent. Enforcing the GPL is socially beneficial, it encourages free competition, etc… The courts said so, which is partly why they enforce it.

Enforcing hyperlink protections is merely blocking factual data and factual data is not protected. The use of code =! factual data.

If you were to link to GPL code on a web page or reference the website or location in a document and tell someone about the code to encourage them to download it, that’s just factual data. It’s fine. But when certain aspects of your code use other code, that’s not merely referencing factual data, it’s requiring GPL code for certain aspects of your program to work.

Anonymous Coward says:

Re: Re: Re:6 GPL/LGPL

The courts have never, ever, ever dealt with the issue of whether dynamic linking of software creates a derivative work. Ever.

One case raised the issue in pretrial motions where it was deferred to trial, which never happened. I imagine that more than one Free Software advocate would be quaking in their boots if the issue were to be decided in court, because the FSF’s interpretation would go against nearly every other comparable interpretation of derived work that has been examined in non-software domains.

The result would be that the LGPL and the GPL would become more or less equivalent.

Karl (profile) says:

Re: Re: Re: Re:

According to the GPL and the FSF’s interpretation of it, if I write software 100% by myself and it links dynamically to someone else’s GPLed library, and then I give it to you, I have created a derivative work of that library and am bound by the GPL.

Not exactly. Your code can be 100% proprietary. What you cannot do is claim copyright over the linked code itself.

So, you would be free to distribute your work in whatever way you wanted to. What you could not do is distribute the linked code under your license.

See:
http://www.gnu.org/licenses/gpl-faq.html#Prelinking

Now, if your software requires the GPL library to compile (thus the GPL code will be included in the binary), then yes, you have to GPL your code. This is solely because the non-GPL, proprietary code cannot be released separately from the GPL code.

But if you can distribute your code (including the binary) separately from the GPL code, then you’re under no obligation whatsoever. You can even write proprietary plug-ins to GPL software.

Incidentally, if you’re merely linking to some piece of code, that code is quite possibly covered by the LGPL, which is quite distinct, and allows you to include those libraries in proprietary software. Just sayin’.

Karl (profile) says:

Re: Re: Re:3 Re:

Actually, the FSF considers the whole program includes dynamic libraries and so if the libraries under GPL the whole program must be under GPL.

That’s not actually what they say: “It depends on how the program invokes its plug-ins.”

Stripped of the geek-speak (which I, in fact, do speak), it means basically what I said above. If the program can compile and run without any GPL code being included, then releasing that version under a proprietary license is fine. If, on the other hand, the program requires a GPL library to function at all, then the whole thing must by GPL.

And, of course, that doesn’t apply to the LGPL at all (which many Linux “plug-ins” use, e.g. LADSPA).

Anonymous Coward says:

Re: Re: Re:3 Re:

(and I guess I got carried away with my challenge to him as well. Maye I got way too carried away with myself and was so frustrated and tired at the time that, at that point, I didn’t really care what the GPL really said. But, in actuality, I do think the GPL does allow him to do what he claims it doesn’t, at least that’s how I remember it when I read it a long time ago).

Anonymous Coward says:

Re: Re: Re:2 Re:

I think the “required to run” standard is silly. Even crashing programs “run” for at least a little while. Maybe just long enough to show an error message, but some of the code still executed.

Also, interfaces are not generally subject to software copyright. Just because there’s a GPL DLL that implements AddNumber(int, int) doesn’t mean that I can’t write my own DLL that implements AddNumber(int, int). And it doesn’t mean that I can’t tell the user that he has to find his own library that implements AddNumber(int, int). And it doesn’t stop me from suggesting that he try that GPL library over there which I am in no way giving to him.

It would be like if I invented a coffee-pouring robot that had instructions to walk to your bookshelf, find a copy of the book “Gateway”, count the words in chapter 7, and pour you a cup containing that number of milliliters. This does not require me to have a license for the book “Gateway”. It also does not require that the book be by any particular author or publisher (although even if it did, I would argue I’m still not violating anything.) It requires YOU to have the book, and it requires that the book have a chapter 7. If your copy of the book has an anti-coffee-robot license restriction, that is YOUR problem, not mine. It’s irrelevant whether the robot breaks down if it can’t find the book.

Karl (profile) says:

Re: Re: Re:3 Re:

Just because there’s a GPL DLL that implements AddNumber(int, int) doesn’t mean that I can’t write my own DLL that implements AddNumber(int, int).

Indeed, you could. Unless, of course, AddNumber was covered by patent laws – in which case you couldn’t. That’s why so many software engineers (including those in the FSF) oppose patents for code.

In any case – if you wrote some function, or plugin, or library or whatever; that does exactly the same thing as GPL code, except without using their actual source code – then you can release it however you want.

Think about the reverse situation. If that wasn’t the case, the GPL wouldn’t be able to write their own C++ compiler. Yet they did.

Anonymous Coward says:

Re: What. The. Fuck.

“Someone should inform Richard Stallman, because this is the exact assumption he makes in the GPL.”

Same word, COMPLETELY different meanings. I cannot believe this has led to a thread so huge it went over the side of the page.

Linking, in the hypertext meaning, which is what Mike is talking about, is providing a way to go from one document to another. Nothing in copyright forbids this.

Linking, in the computer programming meaning, is combining several object files (basically, parts of computer programs) into one, resolving the references between them. There are two main variants: static linking, where the object files are combined into a new single file; and dynamic linking, where the same thing is done every time the object file or program is loaded. This combined file clearly is a derived work of the original files, and thus copyright applies.

abc gum says:

Re: Re: What. The. Fuck.

“dynamic linking, where the same thing is done every time the object file or program is loaded. This combined file clearly is a derived work of the original files, and thus copyright applies.”

AFAIK …….
In the case of dynamic linking, when the originator of the code which makes use of the shared object does not provide same with their distribution they have not infringed upon the copyright of library copyright holder. The person executing code from originator needs to obtain the library themselves and obtain necessary licensing, etc. Code utilizing shared objects usually does not run well without the libraries.

There may be an issue as to whether the originator of code which makes use of the library has obtained the necessary licensing for that library which was used during development of their code.

btw …. IANAL

Karl (profile) says:

Re: Re: Re:

code in and of itself is not copyrightable.

You are definitely wrong about this. For example, GPL is a copyright license.

Code is also, unfortunately, covered by patents (in some cases). This is much worse than copyright, since you can actually patent a process – so if your program does the same process as someone else’s program, without sharing a single line of code, then you’re infringing.

Of the two, patenting software is definitely worse, which is why the FSF (and many others) are so against it.

darryl says:

The technology "made me do it" !!!

You’re also free not to post your content online, or to bar others from republishing it (recognizing certain legal exemptions). But, nothing in copyright law says that you can order people not to link to your work.

so you would rather see people NOT making their works available online (not post your content online).

So if they feel they cannot correctly how it is linked too, it is better that the information is not made available to ANYONE!!

Masnick we ALL know you are technically capable of linking to something.

Just like it is totally clear you are technically capable of shooting a gun.

Does your ability to be able to perform a task automatically give you the right (and responsibility) TO DO IT…

Masnick, go to your kitchen and prove to me you are capable of placing your face on a turned on Hot plate !!!.

I bet you can probably hit yourself over the head with a house brick as well,,,, love to see you try !!!!

Masnick you have the mind set that if you can do something, and it involved technology, you have a RESPONSIBILITY to do that thing.

With TOTAL disregard to ethics, morals or the LAW, if you believe technology can achieve something, it is your RIGHT, and REQUIREMENT to abuse that technology.

Yes, you CAN copy copyrighted songs.. technically
NO you cannot copy copyrighted songs … LEGALLY/Ethicly,morally.

Yes, you CAN shoot a gun and kill someone – Technically

NO you can NOT shoot a gun to kill someone – ethically

Yes, you can technically make money by stealing off other people, or by selling “crystal balls”.

Yes, you can also make money from the efforts and skills off other people technically..

But you cannot do it ethically, morally, or legally…

Just because you have the technology, the knowledge, and the incentive there is nothing in that, that means you have any legal, moral, ethical, or personal right to take that act.

You can technically do lots of things, just because you CAN does not mean YOU MUST, or are forced to do those things.

I am sure you car is capable of exceeding the speed limit, technically you can speed whenever you want, but if you are caught for speeding, are you going to use the excuse “THE CAR MADE ME DO IT”..

“Judge, the TECHNOLOGY MADE ME DO IT,,, I plead insanity”

Ed C. says:

Re: The technology "made me do it" !!!

Link isn’t a copy. A link is just a reference, an address. How do you know where to drive if you’ve never been somewhere before? You find someone to give you a reference–usually an address. The internet works the same way. If you ask a search page or a friend how to get to a website, they’ll give you a reference–usually a link.

Also, just as there’s ways to prevent strangers from getting your home address, there’s ways to prevent strangers from getting a web address. Copyright, however, is NOT one of them.

BTW, if you don’t have a clue about a cars, you don’t just jump in, drive however the hell you want, and then curse at everyone to get the hell out of your way. The internet works the same way (except you don’t need a license). When you shout down others about the “right” way to use something that you have no clue about, you look like a fool–no one takes you seriously.

Anonymous Coward says:

Re: The technology "made me do it" !!!

Darryl,

You might be interested to know that I have actually taught at ANU and just sent an email to a few heads of departments asking WTF.

Linking to a web site anywhere in Australia is NOT, I repeat NOT illegal or unlawful under The Copyright Act, or any other statute UNLESS the material is material that would be classified as RC (Refused Classification) and even then it’s a very very grey area.

Basically seeing as I don’t have the time nor inclination to refute any more of your fallacious sycophantic dribble (work for AFACT perhaps? or even MRG?) all i can say is

Piss off, you contribute nothing and are about as useful as tits on a bull, come back when you grow up and are at least coherent. Either that or stop posting whilst your pissed!

G Thompson (profile) says:

Re: Re: The technology "made me do it" !!!

Oh and just so there is no confusion on your part. The above AC comment to you was from myself.

Oh and you stating that you (or anyone) could use the defense of insanity (mental incapax) in a civil court (or even for a traffic fine) shows how much you just don’t understand about the Australian Legal system either.

darryl says:

Re: Re: The technology "made me do it" !!!

Funny I worked for the ANU as well you might of heard of it its called ADFA, in civil engineering, electrical engineering, chemistry, mechacical engineering, and computer science.

I also performed alot of consulting work at ANSTO with a private R&D company and with the ANU.

you really I am not interested at all in what you may or may not have done, or that it provided you with any more authority than anyone else to comment in an open forum.

G Thompson (profile) says:

Re: Re: Re: The technology "made me do it" !!!

It’s great that you worked/consulted for ADFA (Australian Defence Force Academy – for those wondering) either as a teacher, officer, Tutor/Instructor, or whatever in fields that allow our future Officers to complete a degree whilst undergoing their Officer training though being part of the SMET (Science Maths Engineering Technology) teaching schools still does not give you the qualifications nor the expertise to understand legal statutes, legal opinions, nor case law when it comes to IP under Australian jurisdiction.

I consult to a fair amount of Federal and State based departments on both IT Security, Digital Forensics and even get asked about IP situations and my opinion by Main Stream Media orgs , I even get quoted correctly sometimes too.. I know shock horror! as well as being an Aircraft Avionics Engineer (Qantas) before I sidetracked into the insane world of ITC and Law… oh and I play a fairly good game of solitaire in my spare time too.

But as you state and I agree it doesn’t mean diddly squat when on a public forum. Though when talking about legalities to do with actual laws and not what you think the laws/statutes are or should be, it at least is a good idea to actually know what you are talking about and be able to comprehensibly rebuff critical arguments (or downright dumb statements)

So either acknowledge in your posts that you have no clue about IP laws and are only guessing and stating your personal opinion, or stick with what you know and give us a nice treatise on the wonderful world of Engineering with smatterings of nuclear physics(?) and how Australia is one of the best innovative and inventive countries when it comes to Engineering and the Sciences.

Though I have a suspicion that the persona you portray here is not how you are really like, they don’t allow fools to work for ADFA, nor ANSTO. You’re Intelligent Darryl, show it and use it to contribute , criticise, and logically debate posts. Otherwise it just becomes a slanging match of egos and I get enough of that every time I visit that building with the huge flag on the hill in Canberra. Hey and when America closes its isolationist borders on the Net soon (with their strange new laws) and with Europe imploding, we will be the last bastion of sanity left. HA..

Hope you had a good weekend. Mine? My starter Motor blew up.. Thank Gawd for the NRMA 😉

darryl says:

Re: Re: The technology "made me do it" !!!

What are the qualifications ?

Total believe that everything Masnick says is the word of GOD ?

The ability to put aside reality for Masnicks alternative reality ?

Your ability to leave all logic and reason behind when you read the dribble Masnick rants about ?

The willingness to disregard the law if you feel you are capable of breaking it.

If so you must be well qualified!!!!!

Anonymous Coward says:

Re: Re: The technology "made me do it" !!!

A brick is a block of ceramic material used in masonry construction, usually laid using various kinds of mortar.[1] It has been regarded as one of the longest lasting and strongest building materials used throughout history.

house

house

a. A structure serving as a dwelling for one or more persons, especially for a family.
b. A household or family.

you OK now ???

Do you need to learn your left from right ?

Ed C. says:

I think that if any IP (insane psychopath or infinitely paranoid) that want’s to be walled up in concrete so that no one can touch or reference it, I say we should not only let them, but help them. Once they successfully cut off their own air supply and smother themselves, all that’s left to do is backhoe the dirt on their self-made tomb. Regardless of how painful it might be to put a feral dog down, it’s in the best interest of everyone.

Ed C. says:

Re: Re:

BTW, for those who are too simpleminded to understand sarcasm, I’m not actually advocating killing people. However, just as knifes are useful tools, we don’t allow lunatics who threaten to stab people for referring others to look at their cutlery to have them–or to be in public with others for that matter. People who go about threatening to sue people for referring others to their works are just as insane.

darryl says:

Here is a GUN - it has a simple "point and click" interface.

From 1500 CE onwards, for the first time in human history, multiple maritime and land routes connected reasonably efficiently and reliably most of the inhabited parts of the world. Finally, since late 18th century, multiple advances in mechanized transport (unlocked and fuelled by the industrial revolution) – starting with paddle steamboats (1783), and steam trains (1825), and continuing with motorcars (1885), and airplanes (1903) – have monopolised almost all commercial transportation arteries. Consequently, beasts of burden, as well as boats and sailships were put to work predominantly along the vast network of smaller-scale pathways and waterways, i.e. along the feeder routes. There, in early 21st century, they continue to supply and link human settlements in geographical environments which the contemporary mechanized transport systems find either impassable, or logistically impossible; or in comparison with other trade routes, unprofitable. In other words, both the old and new transportation technologies complement each other while making the everyday commercial movement of people, goods and information increasingly regular and frequent, and ever wider, larger and faster.

Damn shame Masnick is so fixated on a single line at the top, (probably not even put there by the Author).

But if you read the actual ARITICLE you will find it most interesting and informative.

It clearly says that “technology” tends to work TOGETHER, and not in competition with each other (as Masnick would have you belive).

The article basically (and correctly) states IT’s NOT THE TECHNOLOGY, but the APPLICATION and USE of that technology…

Mike still believes in the “field of dreams” dream, “If we build it they will come”

If I can do something, I MUST DO THAT THING..

Masnick are you technically capable of shooting yourself ?

After all, a gun is a simple “point and click” interface…

Anonymous Coward says:

Re: Re: Here is a GUN - it has a simple "point and click" interface.

techdirt is always talking about how technology works with commerce, that is what this article is about..

It’s also years old, and their main page states you are welcome to link to any content, as long as you do not modify the work..

Normal copyright, just like Techdirt

jakerome (profile) says:

Probably a nod to the publisher

Most journals do not want the authors to publish their work online. So it’s likely this is an attempt to mollify the journal but claiming that no one but the author & the few people he sends it to will see it.

It’s silly & unenforceable, but would make a little bit of sense from the point of view of the author trying to satisfy his publisher while posting his work.

Here’s an example from another page,

“Copyright ? 2005-present by T. Matthew Ciolek. This Web page may be linked to any other Web pages. Contents may not be altered. Unauthorised use or electronic dissemination is prohibited by applicable laws. Please contact the appropriate section maintainer for permission to re-use any material.”

guest says:

heres my content, I dare you to link to it.

So an OFFLINE page can link to it? LOL. I know know WHY they didn’t want links to it. It observes that trade routes have gotten longer (more total mileage) over time. OMG, you mean when the population got larger, vehicles got better, and demand increased there were MORE trade route miles? And the numbers bear this out? This is written like a 4th grade text. (I got a Ph.D. for THIS, the author thinks and he hunt and pecks the keyboard…..) Maybe perfect for the intended (um… educated?) audience.

BTW,
if linking is illegal for this page, why does the copyright holder request Google to not index (thru DMCA takedown)? Not knowing how to use the ‘no index’ codes in HTML. Failure to understand how indexing works? or they havent gotten beyond year 1 understanding of the Internet? (just like the courts).. and yes, capital I in Internet is Intentional. I wish I had a Ph.D., my engineering degree and 20 years of sucessfull design experience (but poor mastery of spelling) seems so minor now. If I could only get royalties on the things I have built, but you are now using.

Michael says:

Isn't it funny...

Isn’t it funny how the pro-copyright group preaches about things like morals and ethics, yet turns a blind eye away from how the copyright holders, i.e. major labels, have literally stolen the music from the artists and refuse to give it back, hoard the lion’s share of the profit and leave the artists in debt, send extortionists around to local bars, shops and businesses demanding payment if they so much as turn on the radio in their establishments, attempt to lower artist royalties by 39% so they can pocket the difference, and on and on?

Anonymous Coward says:

A link, to a web page, is simply a reference to an online resource.

I see lots of analogy to GPL, wrong analogy.

An html link is like a card in the card catalog at the library.
The card tells me where to find the resource I am looking for.

Same situation if I use the libraries search feature, the computer tells me where to find the resource.

In both cases at the library there are links to resources and the links are not copyrightable nor can publishers of the resources prevent people from making these links.

Same applies to html links.
It is simply a reference to a resource.

Tom Anderson (user link) says:

Trolly troll

Not only do the links provided not work, the intended site destination http://www.ciolek.com/ is clearly posted:
“This site may be freely linked from other web pages world-wide.”

Furthermore the site has a notice “Web sites around the world that link to http://www.ciolek.com.” http://siteexplorer.search.yahoo.com/au/search?p=www.ciolek.com&bwm=i&bwmo=d&bwmf=u

Trololololol

Anonymous Coward says:

So, just to reiterate that what I said above, it’s not entirely clear that such restrictive language is either wrong or has no effect.

Basically, when you view a web page, you make a copy. That’s normally not infringement for a number of reasons, including that you probably have an implied license from the author (if they are the one putting it online) to make such a copy, because that’s the only way to view the work and presumably that’s why they put it online in the first place.

But, if the author explicitly states that he doesn’t want a work to be viewed in a particular manner (i.e., by linking from a third party), then the implied license argument goes away.

Thus, if you know the author doesn’t want you to link to his web page, and you do it anyway, you are arguably encouraging people to make copies in an unauthorized manner, which could subject you to liability for inducing infringement or contributory infringement.

Maybe none of that applies here, since someone else suggested his website has language stating that it *is* ok to link there.

But at any rate, it’s not crystal clear that linking is *never* infringement (or, at least, contributory infringement or inducement).

nasch (profile) says:

Re: Re:

But, if the author explicitly states that he doesn’t want a work to be viewed in a particular manner (i.e., by linking from a third party), then the implied license argument goes away.

How you got to that web page doesn’t change the mechanism, purpose, or nature of the copying your browser does in order for you to view the page. Whether you type in the URL manually, link from the same web site, or from some 3rd-party site only changes the referrer, which has no bearing on the copying, and so has no bearing on the implied license to copy. Linking is not one of the exclusive rights defined by copyright law, either.

Anonymous Coward says:

Re: Re: Re:

“Linking is not one of the exclusive rights defined by copyright law, either.”

That much is certainly true.

However, I’m not sure if the manner in which you get to the page is completely irrelevant to whether your viewing of the page is licensed.

Basically, you can define the terms of your license however you want. If you say “you can copy my work as long as you do three spins and hop on one leg for 30 seconds first,” then copying of the work without meeting those conditions is not authorized.

It’s true that the explicit terms refer to the linker, not the person following the link, but I think it’s arguable that there is no implication your copying is authorized if you’re doing so by following a clearly unauthorized method.

There may be a fair use argument that is unrelated to the license issue, of course.

Anyway, I just want to make sure that people aren’t misled into thinking this issue is as black and white as the article makes it out to be.

nasch (profile) says:

Re: Re: Re: Re:


It’s true that the explicit terms refer to the linker, not the person following the link, but I think it’s arguable that there is no implication your copying is authorized if you’re doing so by following a clearly unauthorized method.

But you’re not. The method of copying – which is what is at issue – is exactly the same. That’s why I mentioned that linking isn’t one of the exclusive rights. This is the same reason why it’s fradulent for record labels to claim that you’re not allowed to loan your CD to someone. Copyright law simply doesn’t enable them to prohibit that. Same with linking: there’s nothing in the law that enables them to restrict linking behavior, and there’s nothing about the copying behavior that differs between the two scenarios of “authorized” and “unauthorized” link following.

Anonymous Coward says:

Re: Re: Re:2 Re:

What I meant by “the method of copying” in that instance is following an unauthorized link to the web page. It doesn’t matter whether the technical method of making a copy on your computer is the same as whatever method this guy authorized (impliedly or otherwise), he can withhold that authorization based on whatever criteria he wants, including on the grounds of “following an unauthorized link.”

The difference between the CD analogy and the website scenario is that the author *does* have the right to prohibit copying, which happens when you visit the website.

So, if the author says “you can’t visit my website unless you first (a) quack like a duck, (b) eat a pound of cherries, and (c) dig a 3’x’3’x3′ hole,” then it doesn’t matter whether all those conditions are at all related to copyright law, your visiting of the website constitutes unauthorized copying if you don’t fulfill those conditions.

In this case, the author is saying “you can’t link to my website.” So, I think there is at least an argument that any supposed implied authorization to visit his website does not extend to someone who followed an unauthorized link to get there.

I’m not saying it’s clear cut, but since copyright law (U.S. copyright law, anyway) has essentially said that visiting a website constitutes a prima facie case of copyright infringement, you’re playing with gray areas to begin with (implied license, fair use).

nasch (profile) says:

Re: Re: Re:3 Re:

So, if the author says “you can’t visit my website unless you first (a) quack like a duck, (b) eat a pound of cherries, and (c) dig a 3’x’3’x3′ hole,” then it doesn’t matter whether all those conditions are at all related to copyright law, your visiting of the website constitutes unauthorized copying if you don’t fulfill those conditions.

That could be true if it’s possible to make an implied license conditional like that. I don’t really know enough about implied licenses to say. The Wikipedia entry indicates there are some circumstances where an implied license exists even if the licensor is unwilling to grant it. This would seem to me a good candidate for such a scenario.

I’m not saying it’s clear cut, but since copyright law (U.S. copyright law, anyway) has essentially said that visiting a website constitutes a prima facie case of copyright infringement,

I was under the impression it was the exact opposite, that the transient copy the browser makes has been ruled not infringement. I couldn’t find a reference either way though, other than a court case in the UK. Do you have any information about it?

Richard says:

Deep linking, copyright, and "terms of use" agreements

The current Wikipedia policy on copyrights and external links allows linking to copyrighted works, but not in cases where a work has been made available in violation of a copyright. This probably makes sense with regard to the issue of copyright specifically. Also, from what one remembers, it may be the case that a Wikipedia article about a specific site can include external links to that site that might otherwise be disallowed. For instance, the VGMusic.com article has external links to parts of the VGMusic.com site (but not any actual music files) as of now. On the other hand, the Abandonware article has a note in its source data instructing editors not to add links to abandonware archives in the External links section.

In addition to copyright, there may be the issue of “terms of use” agreements. In particular, a “clickwrap” agreement where an “I Agree” button is presented next to a viewable copy of the agreement may be more likely to be enforceable than a “browserwrap” agreement where a link to a “terms of use” agreement is merely included among the other content on the site. (When a “terms of use” agreement includes provisions along the line of “You may use this site only for your personal and non-commercial use,” the question comes up as to how that would affect a party who is doing a critical and public review about the site…)

Anonymous Coward says:

Re:

Here is a good case somewhat relevant, but not directly analogous. Although it doesn’t specifically reach the issue of whether a temporary “cache” copy of a website is a reproduction capable of infringing (other courts have held that it is), the case states that in the context at issue, any “cache” copying by internet users is a fair use.

http://cyber.law.harvard.edu/people/tfisher/IP/2007%20Perfect%2010%20Abridged.pdf

However, since fair use is a fact-specific inquiry, that doesn’t necessarily mean that *all* temporary copies of internet pages are fair uses.

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