A GPL-enforcement suit against VMware

Posted Mar 12, 2015 16:03 UTC (Thu) by butlerm (subscriber, #13312)
In reply to: A GPL-enforcement suit against VMware by jpfrancois
Parent article: A GPL-enforcement suit against VMware

> My understanding is that even if you hide yourself behind an API, the simple fact of using core kernel API means the code behind the API is a derived work. API works both ways. Linux device driver that are a simple aggregation of called function are probably quite rare. Most of them also callback into the core kernel.

This is a legal fiction that has no basis in the law, not the law of the United States at any rate. In the U.S. a derivative work is "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”." (17 USC 101)

Duplication of an entire API (such as making a clone of the Linux kernel) could conceivably be considered a derivative work, if the courts are so foolish as to establish such a precedent, but mere use of an API can never make something a derivative work of something that presents that API. That is legal insanity and anyone who tells you otherwise is selling something.

A GPL-enforcement suit against VMware

Posted Mar 12, 2015 18:13 UTC (Thu) by smurf (subscriber, #17840) [Link] (3 responses)

"No precedent" isn't quite true. Take, for instance, fan fiction. An author may impose arbitrary restrictions on what a fan is allowed to do, which ranges from "nothing, keep off the grass" (Disney) through "don't use my main characters" to "don't do anything I wouldn't do" (McCaffrey's dragons, IIRC; please check before relying on my word).

This issue is far from clear-cut, but that goes for both sides of the argument.

Disclaimer: I am not a lawyer. (Didn't stop me before …)

A GPL-enforcement suit against VMware

Posted Mar 12, 2015 19:33 UTC (Thu) by nybble41 (subscriber, #55106) [Link] (2 responses)

> Take, for instance, fan fiction. An author may impose arbitrary restrictions on what a fan is allowed to do...

This seems like more of a trademark issue than copyright. The fan fiction isn't (AFAIK--insert standard "not a lawyer" disclaimer here) considered a derivative work, but there are limitations on incorporating another author's original characters and settings into your own stories. However, APIs are mostly determined by technical considerations and compliance with the API is necessary for interoperability. For both of those reasons, the use of APIs would seem to me to be outside the scope of copyright, which is meant to cover creative expression rather than essential functionality. For that matter, interoperability has been used to justify exceptions to copyright in the past when the action would normally be clearly infringing, e.g. including a copy of a company's logo when that was the only way to allow a program to work in a third-party game console.

A GPL-enforcement suit against VMware

Posted Mar 13, 2015 2:03 UTC (Fri) by smurf (subscriber, #17840) [Link]

There is no constraint of API compliance in this case, as VMware wrote it themselves. Designing something like that is creative work and thus falls squarely within copyright.

However, I suspect (but didn't investigate further!) that *this* API is merely a convenience layer which defines an arbitrary boundary between GPL'd and closed-source code.

The kernel is licensed by the GPL and not the LGPL, so this is not sufficient as per the authors' intent. Intent tends to matter to German courts.

A GPL-enforcement suit against VMware

Posted Mar 13, 2015 14:55 UTC (Fri) by enyst (guest, #92308) [Link]

There are arguments why fan fiction can be considered a derivative work. It can be seen as a 'sequel'. Incorporating another author's copyrightable (not stock) characters and continuing a story in the same world seem easily creation of a sequel, provided of course that there's enough used, even if non-literal, and what is used is copyrightable and copyrighted.

OTOH, at least some fan fiction is highly transformative and really doesn't 'borrow' much else than characters, with some of their history and known world settings. This may go to fair use, though.

Anyway, I don't think the fan fiction issues have anything to do with software and interfaces. As you noted, talking about APIs is talking about essential functionality, not arbitrary expression nor creative, fictional events.

A GPL-enforcement suit against VMware

Posted Mar 13, 2015 3:24 UTC (Fri) by dlang (guest, #313) [Link] (5 responses)

Don't forget the Oracle lawsuit over the Java API

That's still pending and working it's way up the court system.

The trial judge (who does know how to program), said it's not derivitive to use the API

The appeals court reversed this, I know that Google appealed the appeals court ruling, but I lost track of it and am waiting for it to work it's way up to the Supreme Court to see what they have to say.

Given how they reacted to the arguments about how the strict copyright interpretation that the textbook publishers were pushing for would cause silly and extreme levels of control, I expect that an argument along the same lines about what's an API and how that could be used to block all competition and hurt consumers would carry similar weight.

A GPL-enforcement suit against VMware

Posted Mar 13, 2015 15:03 UTC (Fri) by enyst (guest, #92308) [Link] (4 responses)

I don't understand how is that relevant here. It appears that VMWare did much more, it redesigned a large part of the software to talk to another API they made in-house, then kept the software implementing it proprietary. If my understanding is correct, by doing so, it's highly likely the whole work (emcompassing the proprietary parts) is a derivative of the original.

Do I misunderstand the case? I don't see the relevance of Oracle v. Google here.

A GPL-enforcement suit against VMware

Posted Mar 13, 2015 17:19 UTC (Fri) by dlang (guest, #313) [Link] (3 responses)

> I don't see the relevance of Oracle v. Google here.

I was replying to this part of the comment

> but mere use of an API can never make something a derivative work of something that presents that API.

A GPL-enforcement suit against VMware

Posted Mar 14, 2015 4:27 UTC (Sat) by butlerm (subscriber, #13312) [Link] (2 responses)

In Oracle v. Google, Google has re-implemented a entire, rather extensive API. You could make a reasonable case that any re- implementation of such an extensive and detailed interface amounts to a derived work, even if the similarity is strictly speaking only superficial.

The rather more questionable (if not absolutely ridiculous) claim, however, is that any consumer of an API is a derived work of the original description or implementation of the API. Under that standard, which appears to have no basis in law anywhere, anything compatible with X would be considered a legally restricted derivative of X.

No one would be able to write, license, or sell a Java program to anyone anywhere without some kind of license from Oracle to do so, for example. One might imagine that Oracle is just the kind of company that might require a commercial license to distribute Java programs, or even to compose one in a text editor.

So besides the sheer audacity of the claim that mere consumption of an API makes any program a derived work of the API or of the original implementation of the API, it is the sort of thing that if adopted by the courts would create a greater obstacle to progress in the field than practically anything else imaginable.

A GPL-enforcement suit against VMware

Posted Mar 14, 2015 5:26 UTC (Sat) by Cyberax (✭ supporter ✭, #52523) [Link]

> No one would be able to write, license, or sell a Java program to anyone anywhere without some kind of license from Oracle to do so, for example. One might imagine that Oracle is just the kind of company that might require a commercial license to distribute Java programs, or even to compose one in a text editor.
Stop. Giving. Ideas. To. Oracle.

A GPL-enforcement suit against VMware

Posted Mar 19, 2015 13:05 UTC (Thu) by enyst (guest, #92308) [Link]

> In Oracle v. Google, Google has re-implemented a entire, rather extensive API. You could make a reasonable case that any re- implementation of such an extensive and detailed interface amounts to a derived work, even if the similarity is strictly speaking only superficial.

This is what Oracle lawyers have argued in the trial court.

It's a shocking theory, to say the least. I wish more people would realize that this is what Oracle is arguing, that any reimplementation of a "creative enough" API would be a derivative work merely by being a reimplementation.

If this was becoming the copyright law, then almost any clean room reimplementation would be presumably infringing.

I note that the "creative enough" -only standard of copyrightability would mean only slightly more "choices" than just random numbers or alphabetical lists.

Saying 'extensive' or 'detailed' doesn't give a criterium. The criterium Oracle is arguing for is Feist (slightly more than alphabetical lists).

> The rather more questionable (if not absolutely ridiculous) claim, however, is that any consumer of an API is a derived work of the original description or implementation of the API. Under that standard, which appears to have no basis in law anywhere, anything compatible with X would be considered a legally restricted derivative of X.

The two are related, the consumer replicates names too. Can't 'use' an interface without writing those names in a form or another; as many names as one needs.

According to Pamela Samuelson, consumers are potentially infringing:
http://goo.gl/DCoSqv