Subject: Re: Effect of the MySQL FLOSS License Exception?
From: Rick Moen <>
Date: Fri, 18 Jun 2004 12:43:40 -0700

Quoting (

> In fact, there are two tests that I know of for determining
> derivative-work status:
> 1) If you never saw the original, your work can't be a derivative of it.
> 2) Otherwise, the abstraction-filtration-comparison test applies: we
> reduce the elements of the work to their abstract forms, removing all
> particulars like the names of variables; we filter out non-copyrightable
> elements; and we compare.
> Of course the answer is jurisdiction-dependent.

Yes, I've read about those (though it's been some time, now).

> That turns out, as Kevin Renner says, not to be the case.
> Micro Star thought their work in issuing a CD full of Duke
> Nukem levels didn't infringe FormGen's copyright on the
> game, but they were mistaken.  See Micro Star v. FormGen,
> Inc., 154 F.3d 1107 (9th Cir. 1998).  The decision is at
> and is very much worth reading: it contained several eye-openers for me.

Yes, I apologise for having momentarily confused the derivative-work
issue with that of "viral effects".  (I've been having a busy day.)
You are of course right that a work, _if_ derivative of another, is
encombered by the rights of that work's owner.

Whether a source work _is_ a derivative of another is a factual question
addressed by courts exactly as you've indicated.  But that's not what we
were discussing.

We were discussing whether a source code work that is otherwise _not_
derivative of another is magically rendered derivative by running the
two through a compiler.  You seemed to be saying Prof. Moglen claimed
this.  I was saying it seems highly implausible.  Have we miscommunicated?

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