Re: Licensing question about the BSD

[Bruce Lewis]

Alexander Terekhov <terekhov@web.de> writes:

> Steve wrote:
> > 
> >         You've lost me on this point as well.  Are you trying to say that
> > incorporation of another project's code into your own project does not
> > constitute a "derived work" so long as you don't modify the code you've
> > incorporated?  
> 
> It doesn't constitute a derivative work under copyright law.
> 
> >               Why is it then that if I build an application on
> > MS-Windows using the Cygwin port of GCC, even though I haven't altered a
> > single line of GPL'ed code, I am still forced to license my work under
> > the GPL... because Cygwin dynamically links my code to a GPL'ed DLL.
> 
> No. That's because you've been fooled (not really forced) by the FSF's 
> baseless propaganda regarding linking, I suppose.

I thinking you're taking a far too technical view on what constitutes a
derivative work, and I'll use an example to explain why.

Suppose I created a painting designed to fit under the Mona Lisa and
fill in the rest of her body.  I mount it on a board, carefully aligned
under an exact copy of the Mona Lisa.  Technically, I haven't altered a
single brush stroke of the original painting.  Does this mean my new
work is a compilation?  I don't think so.  I would expect a judge or
jury to view my work as a recasting or adaptation of the original work,
thus fitting the legal definition of a derivative work.

We all know that 500-year-old paintings are not subject to copyright
unless the painter was employed by Walt Disney(1), but suppose for the
sake of argument that I had incorporated the Mona Lisa unlawfully.  If
my work is a derivative, I have no copyright protection on whatever part
incorporates(2) the Mona Lisa.

It's the same with a GPLed program.  If you incorporate it into a new
application, it may not help that you haven't altered a single line of
GPL'ed code.  Your application's dependence on the GPLed code is very
likely to make it a derivative work.


Footnotes:

(1) this is a joke that people familiar with U.S. copyright issues will
    get.

(2) U.S. copyright law says "protection for a work employing preexisting
    material in which copyright subsists does not extend to any part of
    the work in which such material has been used unlawfully."  However,
    I think Alexander is right that "used" is an inappropriate term in
    the context of copyright.  I use "incorporated" here even though its
    definition needs to stretch a little to cover derivative works.
    "Use" can easily be taken to include using a program, but that isn't
    covered by copyright law.  When you see "used" in U.S. copyright
    law, think "put to a use that is the exclusive right of the
    copyright holder."