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GPL 2(b) HUH?

From: Rjack
Subject: GPL 2(b) HUH?
Date: Tue, 16 Sep 2008 18:25:54 -0500
User-agent: Thunderbird (Windows/20080708)

It is interesting to note that compiling the source code of standard
program packages of independently authored c code (and assembler) like
the Linux kernel does not create a derivative work. Some people think
that compiling module1.c, module2.c, . . . into "-o prgm" translates
the source code into a derivative work.

e.g.: gcc -o prgm module1.c module2.c . . .

There is absolutely *no* spark of originality added as gcc assembles the
source code into an executable -- something thousands of people do
every day. Gcc assembles the c code modules into a collective whole
(the executable) according to fixed, predetermined rules with no
assistance from the author. Even the SFLC admits this fact:

"A “collective work” is a work, such as a periodical issue, anthology,
or encyclope a, in which a number of contributions, constituting
separate and independent works in themselves, are assembled into a
collective whole." -- 17 USC 101.

"1 Nimmer on Copyright § 3.02 ('[T]he originality called for in a
collective work consists of the collection and assembling of
pre-existing works, while derivative work originality lies in the
manner in which a preexisting work is transformed . . . .')."

It is obvious that the choice of preexisting c code modules is the
originality contributed in producing the executable since gcc operates
according to fixed, mechanical rules.

If I compile my extra, independently authored c code into the Linux
source tree I create a new collective work not a new derivative work.
This eliminates the condition of sec. 2(b) of the GPL since there is no exclusive right to "prepare" collective works.

Rjack :)

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