Re: NO! (Re: Does GNUstep infringe on Apple's Intellectual Property?)

[Scott Christley]

Well I still disagree, but it isn't my intent to get involved in an 
email war, so I will make a last reply and leave it at that.  As always 
John, it is best if you talk to a real lawyer regarding your specific 
situation, but I seriously doubt you will run into any trouble just 
because you want to make some of your programs available for GNUstep.  
My knowledge of the material is certainly not preventing me from using 
GNUstep; neither back then as a commercial entity nor now with my 
research.

The main reason why I am confident in my assessment is because when I 
wrote the windows32api library and donated it to FSF, I talked at 
length with rms and FSF's lawyer because I didn't want Microsoft coming 
after FSF due to copyright infringement.  I encourage you to read the 
document in that distribution which explains why I took the approach I 
did in order to minimize the risk, but as the lawyer was keen to point 
out if MS wants to sue then they will sue regardless.  The discussion 
with the lawyer was enlightening because it cleared up a number of 
misconceptions that are common:

* Names, like functions names, class names, structures, definitions, 
etc. can all be copyrighted.  Obviously it would be difficult to 
copyright a single word.  The copyright becomes stronger when they are 
included together in a composite work such as an API.

* What the law is very clear about is that original written expressions 
are most definitely protected by copyright law.  A document describing 
an API like WIN32 or OpenStep is clearly an original written 
expression, and it most definitely is protected by copyright law.

* The law is vague and lacks clear precedence about copyrighted "look 
and feel".  Most people, and I did with the lawyer, point out the old 
Lotus 123 case.  Understand that that case was along time ago, and it 
was won by a slim majority.  However, it won based upon the concept of 
"look and feel" not upon a programming interface.  It was a difficult 
case because the judges didn't know how to apply law that was geared 
towards written words to a graphical interface.  Since then there have 
been many lawsuits regarding look and feel copyrights (do a google 
search on 'legal look feel' to get many hits); these cases have gone 
both ways and is still a raging debate.  Extending these decisions to 
APIs, even if the API is for a graphics, is a bit of a stretch.

* There are numerous instances where APIs are clearly considered 
confidential trade-secrets and the copyright owners will vigorously 
defend its rights.  A recent example are DVDs; you are not allowed to 
write a program which will read (decrypt) a DVD without a license, as 
that one russian? guy discovered.  A DVD isn't strictly an API, but it 
could be considered an advanced data structure which are often part of 
APIs.  IBM is another company which keeps some of its APIs close to the 
breast; they've gone after numerous companies who have duplicated their 
mainframe and minicomputer APIs, both software and hardware.

* Translation, rearrangement, compilation, etc. maintains the original 
copyright.  So if you wrote a program which read in the OpenStep spec, 
did some fancy translation work, then spit out a rearranged version; 
that output is still covered by the original copyright.  Most of these 
actions produce a composite work of multiple copyrights; the original 
plus yours for the "original translation".  This is why you find that 
special clause in the GPL about how the license does not apply to OS 
libraries; because most programs need to #include in a system header 
file (copyrighted by the OS owner) and therefore the resultant compiled 
code is a composite work.

Anyways, what I took from my discussions with the lawyer is that APIs 
are well protected by copyright law.

The notion of a "derivative work" just confuses the issue.  If you are 
talking about infringing on a copyright then the minimal action to 
infringe is to include portions of that copyrighted work in your own 
work.  Take a look at any of the major header files in GNUstep, you 
will find portions of the OpenStep (method names, class names, 
structures, etc) specification.  This is clearly inclusion of 
significant if not all of the OpenStep copyrighted material.

Even though the OpenStep specification was published as an "open" 
(whatever that means) standard; it was never released under a license 
which essentially allowed GNUstep to incorporate that API into its 
header files.  Implementation has nothing to do with it because the 
issue isn't about the implementation source code, the infringement is 
in the header files.

Personally, seeing GNUstep track Cocoa is worrisome to me; it keeps 
GNUstep on Apple's radar screen.  Obviously I can understand the 
reasons why people want to do that.  I would much prefer to see GNUstep 
slowly go its own way, but then I'm busy developing other free software 
and just a GNUstep user these days. :-)

cheers
Scott


On Monday, August 25, 2003, at 09:03 PM, Gregory John Casamento wrote:

> Scott/John,
>
> Sorry John, but *frankly* Scott is *way* off base.  The simple answer 
> is "NO".
> Read below for more information...
>
> For something to be a "derivative work" in the legal sense it must use
> copyrighted material from a given source and update or modify that 
> material
> (e.g. copy a header or a source file and update it, the result is a 
> derivative
> work).  GNUstep DOES NOT fit this definition.
>
> I must be concise and to the point here:
>
> GNUstep *does not* rely on any Apple copyrighted material *whatsoever*.
> GNUstep *is not* a derivative work of anything from Apple Computer.
> Implementing the spec *does not* constitute infringement or make 
> GNUstep a
> derivative work since the spec simply describes the API.
>
> GNUstep is a *totally independent, from scratch*, implementation of the
> OpenStep API as well as some of the extensions added later by Apple.
>
> The OpenStep API was published by Apple and Sun in 1994 as an open 
> standard.
> The standard is, of course, copyrighted by someone but, as stated 
> above,
> implementing it does not infringe it.
>
> Furthermore many important court rulings have indicated that APIs 
> themselves
> cannot be copyrighted and that it is fair practice to implement a 
> compatible
> APIs.   See FreeDOS for an example of a DOS clone which can run DOS 
> programs,
> implements the DOS API, but doesn't use any MS copyrights.  The 
> situation is
> similar with WINE which is a clone of the Windows API and it also 
> doesn't use
> any Microsoft copyrights.
>
> A short tutorial on copyrights: Copyrights cover *expressions* of 
> ideas, not
> ideas themselves.  For example: You can write a version of Alice in 
> Wonderland
> and I can write a version of the same thing and neither of us would be 
> in
> violation of the others copyright if both works were created 
> independently.
>
> Also, I urge you both to avoid the term "Intellectual Property" as it 
> is
> inherently confusing since it aggregates together several desparate 
> groups of
> law: copyright, patent, and trademark; none of which have much to do 
> with one
> another.
>
> GNUstep, to my knowledge, does NOT infringe any Apple patents.  But, 
> given the
> US's non-functional patent system *ANYTHING* could infringe someones 
> patent
> these days.
>
> John, if you are so paranoid and so convinced that GNUstep does 
> infringe on
> Apples Copyrights, despite what I and others are telling you 
> vehemently, then
> there's no convincing you otherwise.
>
> --- John Anderson <janderson3272@wideopenwest.com> wrote:
> > Scott,
> >
> > Thanks for the response.  Frankly , I think you are hitting the nail 
> > on
> > head.
> >
> > - John
> >
> >
> > PS: By the way, the discuss GNUstep  list-server is posting my 
> > messages
> > with up to a 12 hour delay.
> >
> >
> >
> > On Monday, August 25, 2003, at 9:21 AM, Scott Christley wrote:
> >
> > > John,
> > >
> > > I grappled with the same question when I originally got involved with
> > > GNUstep back in the mid-90's.  The answer to the question is clearly
> > > yes.  If you were to look at the original OpenStep specification, you
> > > will see that it has NeXT's copyright on it with no mention of a
> > > license, which means that all rights are reserved.  I had contacted
> > > NeXT back in those days about a license for GNUstep development, but
> > > they declined to respond.  They were more interested in companies who
> > > could infuse them with large chunks of cash, like Sun did when
> > > OpenStep was briefly available for Solaris.  To make matters worse,
> > > Apple has patented any number of technologies in use in OpenStep; the
> > > target-action paradigm is one example.
> > >
> > > Considering all this negativity, one might wonder why Apple hasn't
> > > shut GNUstep down yet.  There are plenty of speculative answers:
> > >
> > > * No significant commercial entity to sue.
> > > * Apple has to show financial damages and hardship; Apple stock and
> > > revenues don't seem to be impacted much by GNUstep.
> > > * Apple is "friendly" towards open source groups.
> > >
> > > My personal opinion is that Apple does not consider GNUstep a threat.
> > > The implementation is incomplete and lacks the final polish of OS X,
> > > plus there aren't droves of OS X software companies porting their
> > > software.  If many years down the road, GNUstep does become a
> > > considerable commercial force and Apple's fortunes have waned; then 
> > > it
> > > is perfectly reasonable that they could "pull a sco".  Then again, if
> > > some commercial company does make it big with GNUstep, the best favor
> > > they could do is buy off Apple and secure GNUstep's future.
> > >
> > > cheers
> > > Scott
>
> Do what you will and please stop spreading unwarranted, untrue and 
> unecessary
> FUD.
>
> Thanks, GJC
>
> =====
> Gregory John Casamento
> -- bheron on #gnustep, #linuxstep, & #gormtalk ----------------
> Please sign the petition against software patents at:
> http://www.petitiononline.com/pasp01/petition.html
> Petition to make Lighthouse Application Suite Free Software at:
> http://www.petitiononline.com/laafs/petition.html
> --- Main Developer of Gorm (featured in April Linux Journal) ---
>
> __________________________________
> Do you Yahoo!?
> Yahoo! SiteBuilder - Free, easy-to-use web site design software
> http://sitebuilder.yahoo.com