Subject: RE: "Derivative Work" for Software Defined
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Tue, 14 Jan 2003 09:23:37 -0800

 Tue, 14 Jan 2003 09:23:37 -0800
Scott,

I never suggested that a software license (speaking generally, now)
"only requires a determination of whether A is a derivative of B."
Contracts set their own law, and definitions matter.  Theoretically one
can write a license that sets reciprocity conditions that apply to works
that link to each other in any way at all, or that merely coexist on the
same medium.  I won't prejudge whether such a license would be
compatible with the OSD, but at least it would be legally effective to
do so.

But when a license purports NOT to be a contract and intends to be
interpreted in the same way worldwide under copyright law alone, then I
don't understand how you can go beyond what that law provides.  Does the
"legal rule of construction" that you refer to have any application
outside of contract law?  For a copyright license that is to be
interpreted under copyright law, why would a court construct anything
more than what the statutory or case law requires?  How can a licensee
be bound to interpretive language in a *mere* copyright license?

I don't think it is true that "if A+B is one work under copyright law,
then it is a derivative work of both A and B."  (I'm not quoting you
precisely because your email is slightly garbled; have I misquoted you?)
What does the "+" mean in your mathematical expression "A+B"?  Suppose A
is Windows and B is Excel.  Are either of those programs derivative
works of the other simply because thay are "plussed" together onto the
same disk, or even link to each other in the course of their execution
on a computer?  

What SHOULD the courts do with the language you quoted from section 2 of
the GPL?  I'm not really sure.  Perhaps a broader interpretation of the
term "derivative works" as applied to software will be accepted
ultimately by the courts because of a community concensus that such an
interpretation is appropriate.  But I'd sure like to offer more than
precatory language in a copyright license itself to support such an
interpretation, such as one or more decisions by one or more federal
courts.  Nobody, including the most fervent advocates of the GPL, have
ever provided such authority.  

/Larry

> -----Original Message-----
> From: PETERSON,SCOTT K (HP-USA,ex1) [mailto:scott.k.peterson@hp.com] 
> Sent: Tuesday, January 14, 2003 6:52 AM
> To: 'lrosen@rosenlaw.com'
> Cc: dravicher@pbwt.com; license-discuss@opensource.org; 
> 'Andre Hedrick'; 'Ian Lance Taylor'
> Subject: RE: "Derivative Work" for Software Defined
> 
> 
> Larry --
> 
> I want to become a believer that the appropriate analysis 
> only requires determination of whether A is a derivative of 
> B. But I just don't see how that analysis squares with that 
> paragraph of section 2. I am stuck on that legal rule of 
> construction that says that in judging various possible 
> interpretations, one should weigh more heavily those 
> interpretations that give meaning to all of the provisions. 
> 
> Is this a point on which you think that the authors of the 
> GPL were wrong in their understanding of copyright law? Or, 
> what is your understanding of the meaning of the paragraph of 
> section 2 that I quoted?
> 
> I am not assuming that the GPL does more than leverage the 
> copyright law. If
> A+B is one work under the copyright law, then A+B is a 
> derivative of B 
> A+and
> requires B's permission for distribution. Thus, it is 
> unnecessary to find a contractual obligation to restrict the 
> distribution of A+B. 
> 
> -- Scott
>                               
> Scott K. Peterson
> Corporate Counsel
> Hewlett-Packard Company
> One Cambridge Center
> Cambridge, MA 02142
> scott.k.peterson@hp.com
> 
> 
> -----Original Message-----
> From: Lawrence E. Rosen [mailto:lrosen@rosenlaw.com]
> Sent: Monday, January 13, 2003 11:13 PM
> To: 'PETERSON,SCOTT K (HP-USA,ex1)'; 'Andre Hedrick'; 'Ian 
> Lance Taylor'
> Cc: dravicher@pbwt.com; license-discuss@opensource.org
> Subject: RE: "Derivative Work" for Software Defined
> 
> 
> Scott,
> 
> I think your response would be appropriate if the GPL were a 
> contract rather than a mere copyright license.  The GPL is 
> intended by its authors to be interpreted and enforced under 
> copyright law.  There is no basis in that law for the 
> definition of "derivative work" that is implied by the GPL 
> language you quoted.  How can you assume that a licensee 
> accepted such a broadened definition of "derivative work" 
> absent his assent to a contract?
> 
> The MPL also attempts to apply to more than derivative works. 
>  While I don't particularly understand its reach, at least it 
> is to be enforced as a contract and thus the definitions in 
> that contract are relevant. That, for me, is the essential 
> difference between a copyright license and a contract.
> 
> The GPL can't do more than copyright law allows -- because 
> that's how its authors want it to be treated.  I don't 
> understand how GPL licensors can benefit from contract provisions.
> 
> /Larry
> 
> > -----Original Message-----
> > From: PETERSON,SCOTT K (HP-USA,ex1) [mailto:scott.k.peterson@hp.com]
> > Sent: Monday, January 13, 2003 10:30 AM
> > To: 'lrosen@rosenlaw.com'; 'Andre Hedrick'; 'Ian Lance Taylor'
> > Cc: dravicher@pbwt.com; license-discuss@opensource.org
> > Subject: RE: "Derivative Work" for Software Defined
> > 
> > 
> > Larry --
> > 
> > I think that you place too much emphasis on the concept of
> > "derivative work". It seems clear that section 2 of the GPL 
> > is about more than merely derivative works. If all that 
> > matters is whether something is a derivative work, then what 
> > does the following paragraph from section 2 mean:
> > 
> > "These requirements apply to the modified work as a whole.
> > If identifiable sections of that work are not derived from 
> > the Program, and can be reasonably considered independent and 
> > separate works in themselves, then this License, and its 
> > terms, do not apply to those sections when you distribute 
> > them as separate works.  But when you distribute the same 
> > sections as part of a whole which is a work based on the 
> > Program, the distribution of the whole must be on the terms 
> > of this License, whose permissions for other licensees extend 
> > to the entire whole, and thus to each and every part 
> > regardless of who wrote it."
> > 
> > -- Scott
> >                               
> > Scott K. Peterson
> > Corporate Counsel
> > Hewlett-Packard Company
> > One Cambridge Center
> > Cambridge, MA 02142
> > scott.k.peterson@hp.com
> > 
> > 
> > -----Original Message-----
> > From: Lawrence E. Rosen [mailto:lrosen@rosenlaw.com]
> > Sent: Monday, January 06, 2003 7:36 PM
> > To: 'Andre Hedrick'; 'Ian Lance Taylor'
> > Cc: dravicher@pbwt.com; license-discuss@opensource.org
> > Subject: RE: "Derivative Work" for Software Defined
> > 
> > 
> > I continue to believe that these confusing messages about
> > "derivative works" entirely miss the mark.  Where in the 
> > statutory or case law can one find support for such 
> > conclusions as are reflected in these messages? 
> > 
> > If you don't create "a work based upon one or more
> > preexisting works" then you have simply not created a 
> > derivative work.  17 U.S.C. 101. How in the world does an 
> > independently-written piece of software that communicates 
> > with another independently-written piece of software through 
> > a published API ever become a derivative work of that other 
> > software?  Where in the GPL does it say that it can become a 
> > derivative work?  
> > 
> > Nothing in the Copyright Act addresses the *use* of software
> > in this way.  If the GPL is enforced under the copyright law, 
> > then how could a court ever conclude that it reaches to such 
> > API-connected pre-existing works that merely get used together?
> > 
> > /Larry Rosen
> > 
> > > > > One of the questions about "Derivative Work" as it
> > > relates to binary
> > > > > only loadable objects, is the creation of a boundary layer of 
> > > > > execution. Specifically, the design and publishing an 
> API which 
> > > > > properly glues into an open source gpl program or
> > > kernel(ie loadable
> > > > > modules services) designed to provide an execution layer
> > > between the
> > > > > GPL and Commerial private code. Where as no GPL code in
> > > any form is
> > > > > allowed to touch the Commerial code. The converse is true, 
> > > > > obviously.  The execution layer or boundary. Now using this 
> > > > > reference from 1995, many companies have gotten legal 
> positions 
> > > > > about binary modules.
> > > > > 
> > > > > 
> > > http://groups.google.com/groups?as umsgid=4b0rbb%245iu%40klaav
> > a.hels
> > > > inki.fi
> > > 
> > > What Linus says presumably is valid for Linux.  RMS 
> agrees with that 
> > > in the message you forwarded.  It doesn't necessarily 
> apply to any 
> > > program other than Linux.  Note in particular the last 
> paragraph in 
> > > Linus's message.
> > 
> > If all one is using are headers or .h files and everything
> > else is from scratch, does using the headers under the 
> > statement above comply with the intent?
> > 
> > I am not seeking an opinion without paying for it.
> > 
> > > > I ship and sell binary only products, so I have an 
> interest in not 
> > > > restricting people.
> > > 
> > > Other than your customers, presumably.  Restrictions cut 
> both ways.
> > 
> > In what way would a restrict cut both ways here?
> > 
> > I am a little naive, but always try to do the right thing.
> > 
> > Regards,
> > 
> > Andre
> > 
> > --
> > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
> > 
> > --
> > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
> > 
> 

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