Subject: Derivative Works
Date: Fri, 18 Jun 2004 02:11:49 -0500


OK, IANAL. Can someone who is explain FormGen vs. Micro Star?

The judge says, 'we have developed certain criteria a work must satisfy in order
to qualify as a derivative work. One of these is that a derivative work must
exist in a "concrete or permanent form," Galoob, 964 F.2d at 967 (internal
quotation marks omitted), and must substantially incorporate protected material
from the pre-existing work, see Litchfield v. Spielberg, 736 F.2d 1352, 1357
(9th Cir. 1984).'

Thus in the case of an executable file which either statically links to or
instantiates C++ templates from a library is indeed "concrete or permanent".
Also it incorporates material from the work i.e. the compiled (translated?)
source code of the original. Thus, an executable linking to GPL'ed libraries
must have its source code available according to the GPL.

No quarrel about the source code only referencing those libraries and templates,
since I'm only concerned that the executable is closed source.

(Interestingly enough, Micro Star argued that its work referenced art files but
did not actually include that -- shades of the dynamic linking issue -- but the
judge skips over this point.)

I don't understand this bit though:

'In addition, " work will be considered a derivative work only if it would be
considered an infringing work if the material which it has derived from a
pre-existing work had been taken without the consent of a copyright proprietor
of such pre-existing work." Mirage Editions v. Albuquerque A.R.T. Co., 856 F.2d
1341, 1343 (quoting 1 Nimmer on Copyright S 3.01 (1986)) (internal quotation
marks omitted).'

Glen Low, Pixelglow Software

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