Re: Is the GPL all encompassing?

[amicus_curious]

"Rjack" <user@example.net> wrote in message 
04CdnTQPD_EVtEjVnZ2dnUVZ_tLinZ2d@giganews.com">news:04CdnTQPD_EVtEjVnZ2dnUVZ_tLinZ2d@giganews.com...
> > Assume I have the source code for the Linux 2.6 kernel. Suppose I
> > want to use just a piece of it. How small a piece does it have to be
> > before I'm no longer violating the GPL?
>
> > What my question is really; "At what point does the source code take
> > on a identifiable identity?" Its written in C (or at least a lot of
> > it is). Most of the constructs for C are defined in the language. So
> > you can't point to a specific subroutine or sort or whatever to say
> > this is copyrighted or its not. My guess is that "prior art" would
> > cover 95 to 99% of the "uniqueness" of any software product.
> > Programmers borrow ideas and algorithms constantly.
>
> http://community.zdnet.co.uk/blog/0,1000000567,10009357o-2000440676b,00.htm

I don't think that the question has any practical significance.  Generally 
speaking the purpose of copyrights as well as patents is to protect the 
author's right to derive revenue from the intellectual property.  When it 
comes to a GPL program, you commonly have the following situation:

1.  There is a successful commercial program developed, for example Adobe 
Photoshop.  It rises to the top of the heap and becomes a must-have for a 
lot of users who derive some financial benefit from using it, i.e. 
commercial artists and the like.

2.  Some more people see the utility of the program and create clones.  A 
lot of times there is a GPL clone, "Gimp", for example, that emulates the 
functionality and ofter the look and feel of the commercial program.  Over 
the years the law has come to allow this sort of thing.

3.  The GPL crowd becomes proud of their achievement and a lot of 
non-commercial users fool around with the OSS program and may even 
contribute to it and extend it further to be more compliant with the 
commercial product.  I know of no real situation where the OSS program ever 
became more desirable than the original, but many OSS fans will dispute that 
and argue about some subjective thing being better but there is never any 
accepted metric.

Now what does that all mean for the value of the copyright?  First, the only 
really valuable copyright would be held by the original commercial vendor 
who gets money for each copy sold.  They are generally the leader and the 
standard of comparison in the market.  The OSS product may be just as 
useful, but user psychology being what it is, it is never seen that way. 
Gimp is a poor man's photoshop in the mind of the beholder.  Maybe ever an 
poor man's Paint Shop Pro.

So do you want to "steal" this code and go into business armed only with a 
clone of a clone?  Some people may think so, but they are sure to lose their 
investments quickly.  The commercial success owes its genius more to timing 
and user recognition than to any exacting technology.  It is hard to see how 
the OSS fans do not see this. After all, they constantly deride Microsoft 
Windows as being inferior to Linux and only dominant due to its marketing 
and the lack of perception by the buyers, so why would they think that some 
GPL program could be "hijacked" and turned into a raging success 
commercially?