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Re: SFLC's GPL court enforcement -- track record

From: Hyman Rosen
Subject: Re: SFLC's GPL court enforcement -- track record
Date: Thu, 11 Sep 2008 09:31:42 -0400
User-agent: Thunderbird (Windows/20080708)

David Kastrup wrote:
Depends on what "a program" is and how much it is structured to
> depend on that library... will be rather hard to declare the whole as independent.

I don't think you understand. It has nothing to do with a work
being independent. For one thing, copyright law doesn't care if
a program works or not. If I create a program attached to a
fingerprint scanner which works only with your thumbprint, that
does not make the program a derivative work of you.

You need to read the statute (for U.S. law, anyway),

    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”.

That's why I quoted from the Harry Potter decision. Although the
Lexicon actually contained reams of text copied directly from other
books, the judge found it not to be a derivative work based on the
definition above.

> It is a grey area, certainly not sufficient for you to dish out
> abuse like "GPL uber-advocates who favor the FSF view that just
> looking at GPL code funny makes something a derivative work".

It's not gray at all, nor was my statement terribly abusive. The law
is what it is. For a work to be derivative, it must be a transformation
of an existing work into a different form but preserving the character
of the original. A program which dynamically links to a library does
not fit this definition - the program does not contain a transformed
version of the library at all, especially while it is being distributed.
For the FSF to continue maintaining otherwise (as they do in various
places on their web sites) is at best disingenuous.

> If what you call the "FSF views" are solidly renounced in court

It is quite possible to be wrong for a very long time without being
challenged about it in court. That doesn't make it any less wrong.

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