Subject: RE: Effect of the MySQL FLOSS License Exception?
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Thu, 17 Jun 2004 16:47:59 -0700

 Thu, 17 Jun 2004 16:47:59 -0700
Zak Greant wrote:
> The idea of being able to draw a clear line between derivative and
> collective works based on "treating the Program as a black box with
> hooks for connectivity" makes me very uncomfortable. It is generally a
> relatively trivial task to create a GPL-licensed wrapper that allows
> GPL-licensed code to be used as a black box component. In effect,
> architecture can trump the copyright holders rights, even when is
> clearly not what they desire.

I certainly understand your discomfort, given how loudly this argument has
raged in free software and open source circles these past few years. But
what is it about the copyright law that leads you to believe that the degree
of triviality to wrap a copyrighted work as a black box makes a difference
in the definition of a derivative work? And what is wrong, ethically or
morally or according to the open source creed, with encouraging open source
black boxes to be put together in imaginative ways without forcing those
ways to be disclosed?

If a licensor wants to prevent this situation he can write his license
accordingly. Nothing trumps the copyright holder's rights. (Certainly not
"architecture.") If he wants to, a licensor can impose license conditions on
*collective works* and make them subject to a reciprocity obligation, for
example, although I doubt that such a license would be acceptable to many of
his customers. I also doubt such a license would be compatible with the OSD,
because it restricts the freedom to make and distribute mere copies of the
software for any uses the licensees can contemplate. If you want your
license to reach beyond derivative works to something more in the nature of
collective works -- no matter how trivial or complex the technical process
of doing so -- then go ahead and write your non-open-source license to say
so. And be precise about it, which the GPL and LGPL certainly aren't.

Let's be candid about what behavior we want to affect by our reciprocal
licenses. I believe we want to make sure that changes, bug fixes and
enhancements to our software are returned to the commons. But we don't want
to discourage the use of our open source software in combination with other
software, proprietary or open. By distinguishing between *derivative works*
and *collective works* as the copyright law itself does, we can better
achieve this balance.

The courts may ultimately make clearer the sorts of transformations of
software that result in the creation of a derivative work. In the meantime,
I have found no case that even suggests that the mere linking of one
black-box program to another results in the creation of a derivative work of
either. And why should it?

/Larry

Lawrence Rosen 
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
General counsel, Open Source Initiative (www.opensource.org) 
3001 King Ranch Road, Ukiah, CA 95482 
707-485-1242 * fax: 707-485-1243 
email: lrosen@rosenlaw.com 


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