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Re: More GPL questions

From: David Kastrup
Subject: Re: More GPL questions
Date: Tue, 17 Oct 2006 12:32:34 +0200
User-agent: Gnus/5.11 (Gnus v5.11) Emacs/22.0.50 (gnu/linux)

Stefaan A Eeckels <> writes:

> On Tue, 17 Oct 2006 11:20:54 +0200
> David Kastrup <> wrote:
>> The source code is not a derived work as far as I can see, but the
>> question is whether a mechanism created and provided for the sole
>> purpose of acquiring a copy to be used in order to circumvent the
>> requirements of the GPL does not, in itself, count as redistribution
>> of the person providing this mechanism.
> If the result of such a mechanism is the same as providing a
> compiled "Schmoo" program that is under the copyright of the GPLed
> library, then you have a point. If a single-user license to the
> source code of Schmoo is sold, it doesn't matter whether the buyer
> compiles Schmoo, or feeds it to his pet canary.


>> Again, the question is whether the source code alone can be considered
>> the actual product sold.  If it is example code, this would probably
>> be the case.  If a convenient way of creating and using a copy of the
>> GPLed software for the purpose of circumventing the GPL is included,
>> the status of this copy and its use appears more than doubtful to me.
> I write an original program that happens to use your GPLed
> library. I license my source code under a non-Free license to
> Alex. He compiles my code, and links it with your GPLed library that
> happened to be on his system (or that he downloaded for the purpose,
> for all I care).  Go ahead, sue me for copyright violation.


    The Copyright Act, at 17 U.S.C. §101, is a little vague and
    doesn't say anything at all about software:

        A ``derivative work'' is a work based upon one or more
        pre-existing 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''.

Now while we are not talking software here, the last sentence makes
clear that even a work which as a whole represents an original work of
authorship can be a derivative work.

The author of the article, Lawrence Rosen, opines

    1) The primary indication of whether a new program is a derivative
    work is whether the source code of the original program was used,
    modified, translated or otherwise changed in any way to create the
    new program. If not, then I would argue that it is not a
    derivative work.

However, this opinion clearly does not jibe well with the last
sentence of 17 U.S.C. §101 where a "work of annotations" is already
called a derivative work.  And the above paragraph is actually
inconsistent.  In this case, the equivalent of the "source code of the
original program was used [...] to create the new program", but that
does not imply that it was "changed in any way".

This is, of course, U.S. law and not an integral part of the Berne
convention, so the consequences of local copyright laws might differ
in addition to the U.S. laws being less than straightforward in their
application to software.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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