It is apparent that I have been unclear about what I meant, so let me try a hypothetical.
Assume some code A and some code B. Assume that B is licensed under the GPL and that one is trying to answer the question, "When I distribute A and B together, must A be distributed under the GPL?" My critique of Larry's analysis is to say that considering whether A is a derivative work of B is not necessarily the end of the analysis. What I failed to point out in my previous message (and what I'll try to make explicit here) is the following: I believe that one should also consider the question of whether A+B is one program. In that case, A+B is a "work based on the Program" and A+B is a derivative work of the Program, even though A might not be a derivative work of B. I see this as being wholly consistent with sections 0 and 2. What I don't understand is that, if all one needs to do is to answer the question, "Is A a derivative work of B?", then what is the point of the paragraph in section 2 that I quoted in my earlier message (below). -- Scott ______________________________ Scott K. Peterson Corporate Counsel Hewlett-Packard Company One Cambridge Center Cambridge, MA 02142 [EMAIL PROTECTED] -----Original Message----- From: Ravicher, Daniel (x2826) [mailto:[EMAIL PROTECTED]] Sent: Monday, January 13, 2003 1:39 PM To: 'PETERSON,SCOTT K (HP-USA,ex1)'; '[EMAIL PROTECTED]'; 'Andre Hedrick'; 'Ian Lance Taylor' Cc: [EMAIL PROTECTED] Subject: RE: "Derivative Work" for Software Defined Yes, but Section 0 of the GPL defines "a work based on the Program", as in "when you distribute the same sections as part of a whole which is __a work based on the Program__", as such: "a "work based on the Program" means either the Program or any derivative work under copyright law" So, the GPL does appear to rely on the definition of derivative work under copyright law for drawing the line between those works that are covered and those that are not. Plus, for the GPL to impact the rights of folks with respect to programs that are not derivative works, it must be a contract, something FSF expressly says it is not (see: http://www.nccusl.org/nccusl/meetings/UCITA_Materials/kunze-ucita.pdf). If its not a contract, then copyright law precludes the finding of any infringement by the distribution of an independent (synonymous with not derivative) work. --Dan Daniel Ravicher Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, NY 10036 212.336.2826 direct 212.336.7900 fax mailto:[EMAIL PROTECTED] http://www.pbwt.com/ -----Original Message----- From: PETERSON,SCOTT K (HP-USA,ex1) [mailto:[EMAIL PROTECTED]] Sent: Monday, January 13, 2003 1:30 PM To: '[EMAIL PROTECTED]'; 'Andre Hedrick'; 'Ian Lance Taylor' Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED] 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 [EMAIL PROTECTED] -----Original Message----- From: Lawrence E. Rosen [mailto:[EMAIL PROTECTED]] Sent: Monday, January 06, 2003 7:36 PM To: 'Andre Hedrick'; 'Ian Lance Taylor' Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED] 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 ---------------------------------------------------------------------------- -- Privileged/Confidential Information may be contained in this message. If you are not the addressee indicated in this message (or responsible for delivery of the message to such person), you may not copy or deliver this message to anyone. In such case, you should destroy this message and kindly notify the sender by reply email. Please advise immediately if you or your employer do not consent to Internet email for messages of this kind. ============================================================================ == -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
