Subject: RE: FW: FW: Qt and the GPL
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Mon, 11 Sep 2000 19:17:35 -0700

The real question is whether either the dynamic or static linking of a
program to a copyrighted work creates a "derivative work," as that term is
defined in 17 U.S.C. 101:

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."

In some situations the static linking of two programs creates a derivative
work, but I cannot imagine any scenario under which the dynamic linking of
two programs -- particularly where the end user is doing the dynamic linking
in accordance with published procedures (e.g., a published API) -- creates a
derivative work.  In no way is the original work being modified.

At most, dynamic linking might fall under the definitions of "collective
work" or "compilation."  Those terms are also defined in 17 U.S.C. 101:

A "collective work" is a work, such as a periodical issue, anthology, or
encyclopedia, in which a number of contributions, constituting separate and
independent works in themselves, are assembled into a collective whole.

A "compilation" is a work formed by the collection and assembling of
preexisting materials or of data that are selected, coordinated, or arranged
in such a way that the resulting work as a whole constitutes an original
work of authorship.  The term "compilation" includes collective works.

When the author of piece of software that uses dynamic linking to integrate
itself with other programs (e.g., to load drivers or special subprograms)
licenses his program for reasonable use, he cannot thereby force the third
party programs to lose their own license characteristics.  He may be able to
say "you are not licensed to create a compilation or collective work with
third party software unless that third party software is licensed the way I
want it to be."  But he cannot say that "the third party software
automatically inherits the license characteristics of my software."  In any
event, I doubt that the original author could ever enforce any such
restrictive license terms against end users of his software who are merely
doing the dynamic linking for which purpose his program was designed.

/Larry Rosen

> -----Original Message-----
> From: David Johnson [mailto:david@usermode.org]
> Sent: Monday, September 11, 2000 6:50 PM
> To: John Cowan
> Cc: License-Discuss
> Subject: Re: FW: FW: Qt and the GPL
>
>
> On Mon, 11 Sep 2000, John Cowan wrote:
> > Nelson Rush wrote:
> >
> > > Also, there is no legal distinction between dynamic and
> static linking, so
> > > the issues are the same for both.
> >
> > In principle, no.  But static linking is often done by the
> distributor of
> > a program, whereas dynamic linking is invariably done by the
> person executing
> > the program.  In the latter case, de minimis and first-sale
> issues arise:
> > technically, scribbling marginal notes in your copy of a book
> is making a derivative
> > work, but as long as you do not distribute it, a copyright
> lawsuit against you
> > will not get far.
>
> Does copyright law make a distinction between refering to a work and
> incorporating the work? If so, the dynamic and static linking have
> another big difference. In the case of dynamic linking only references
> into the library are used (the interface) while the actual library is
> not incorporated.
>
> --
> David Johnson
> _________________________
> <http://www.usermode.org>
>