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Re: license question with non-GPL library

From: Alexander Terekhov
Subject: Re: license question with non-GPL library
Date: Wed, 16 Aug 2006 18:23:31 +0200

Alexander Terekhov wrote:
> Merijn de Weerd wrote:
> [... CONTAINS ***OR*** is DERIVED ...]
> Hey Merijn, drop an email to Professor Determann.

and tell him that regarding 

The first sentence of Section 2 of the GPL permits modifications to the 
GPLed program in reference to the defined term “work based on the 
Program.” The following sentences of Section 2 contain a number of 
license conditions and explanations and use a number of other terms to 
describe the result of modifications besides “work based on the Program,” 
including modified files,253 modified program,254 and modified work.255 
The critical Subsection (b) refers to “any work . . . that in whole or 
in part contains or is derived from the Program or any part thereof.”

Taken out of context, each of these terms seems to go well beyond the 
statutory definition of derivative works in the Copyright Act, because 
the statutory definition is not satisfied by every modification or any 
work that contains any part of another work, or that is derived from 
any part of another work. As discussed, under the Copyright Act, a 
combination of code with a GPLed program constitutes a derivative work 
of the GPLed program only if the combination (i) is sufficiently 
permanent, (ii) contains significant and creative portions of the GPLed 
program, (iii) is creative in its own right, and (iv) involves 
significant and creative internal changes to the GPLed program.256

In context, however, it appears that the drafters of the GPL randomly 
chose substitutes to the somewhat awkward term “work based on the 
Program” and used the substitute terms synonymously to improve the 
sentence flow and readability. This impression is confirmed throughout 
the document, which also uses other substitutes, including the 
“derivative or collective works based on the Program”257 and “derivative 

Some of the explanations throughout the GPL as well as the Free Software 
Foundation’s FAQ259 and “Lesser General Public License”260 imply that the 
drafters of the GPL intended to cover software combinations that would not 
qualify as derivative works under the Copyright Act...

he might want to add a footnote to 

> he must be missing the true meaning of "contains" (vs "mere
> aggregate"). Same as the GPL author himself, by the way.
> "RMS: We have no say in what is considered a derivative work. That
>  is a matter of copyright law, decided by courts. When copyright
>  law holds that a certain thing is not a derivative of our work,
>  then our license for that work does not apply to it. Whatever our
>  licenses say, they are operative only for works that are
>  derivative of our code.
>  A license can say that we will treat a certain kind of work as if
>  it were not derivative, even if the courts think it is. The Lesser
>  GPL does this in certain cases, in effect declining to use some
>  of the power that the courts would give us. But we cannot tell the
>  courts to treat a certain kind of work as if it were derivative,
>  if the courts think it is not."

He might even acknowledge you! Must be good for a copyright law student.



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