Subject: RE: "Derivative Work" for Software Defined
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Wed, 15 Jan 2003 10:46:00 -0800

Scott,

> You keep returning to contract obligations. But, I'm not
> relying on any contract obligations. Any distribution that 
> includes copyrightable material from B needs the permission 
> of B's copyright owner. The hypothetical that I've presented 
> includes distribution of B. Thus, B's permission is needed. 
> I'm trying to understand the conditions the copyright owner 
> has attached to the copyright owner's offer of permission to 
> distribute B (the conditions in the GPL). So, the conditions 
> specified in the GPL are relevant to what someone needs to do 
> in order to legally distribute A+B, without regard to whether 
> A+B is has some special status as a protected copyrightable
> work (B's protectable status is enough).

I keep returning to contract obligations because under copyright law
there are only a limited set of exclusive rights that may be licensed,
namely to make copies, prepare derivative works, distribute copies,
perform and display.  Where in the statute is there any reference to an
exclusive right to make a "work based on the Program" or a "Larger
Work"?  How is a court to interpret those phrases?  Why should the court
even try to do so?  Are those things more than a derivative work or
less?  Why is the licensor's interpretation of those phrases in any way
binding upon licensees?  

The GPL grants an unlimited right to make copies but a conditional right
to make derivative works (with some other words in the license about a
limited right to make a "work based on the Program").  The only way a
judge can interpret that license is to determine whether what is being
made -- your A+B, for example, where A is the GPL-licensed work --
involves making a copy of A or creating a derivative work of A.  If the
former, then the license is clear that there are no reciprocal
obligations.  If the latter, then the license is also clear that the
author of A+B must disclose his source code.  

That's the question we've all been struggling with.  Does linking
require merely the making of a copy or is it the creation of a
derivative work?  We're now back at square one.  

How does the language you quoted from section 2 help the judge perform
that analysis?  Why should the judge care at all that those other words
are in the license, given that there is no proof whatsoever that the
licensee either read or assented to that extra language?  

If the GPL is just a copyright license then none of that extra language
matters.  The only question is, has a license been granted to make a
copy or to create a derivative work?

But if you've got a contract to which the licensee assented, then the
licensee is bound by the entire contract.  The court is required to
interpret a contract in light of the entire document, attempting to find
a consistent interpretation that most nearly satisfies the agreed
objectives of the parties.  The definitions in the contract will guide
its interpretation.

I am perplexed by the apparent reluctance of the authors of the GPL and
by you to allow the GPL to *also* be treated as a contract.  If one does
that, all the problems you're pointing out disappear.  There will no
longer be any ambiguity because the *contract* would have to be
interpreted as a whole, not merely as a copyright license.  What would
the GPL lose by also being treated as a contract?  

The GPL would have much to gain by being treated as a contract.  Most
importantly, it would become enforceable by any licensor and not just by
a copyright holder.

Your invitation to "sit back in the comfort of some overstuffed chairs,
possibly with a beverage in hand, and have a relaxing interactive
discussion" is gratefully accepted.  Depending upon the beverage I might
even be convinced of the correctness of your analysis, but that will
take more than one drink.  :-)  I think we're both going to be in
Seattle soon at the same meeting, so perhaps then????

/Larry

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