Scott-- > 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 ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Provide one does not introduce subjective points, but where are the points of fact and not beliefs? > 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 ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Where is your proof in the equation of facts. A+B == AB == BA == A^B == B^A or ~= Ae^B ~= e^AB > 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 you do not have is a test to discriminate. What you have not addressed is A+C == A' and C+B == B'. C == the abstraction between the two items or their communication path. C may be the resulting derived work, but the copyright is own by the author of the original work A. A has the legal right to use C however it wishes. C also complies with any issues B has in the tainting by GPL. So we have both A and B disassociated, and C is joint operation. Comments? Andre Hedrick LAD Storage Consulting Group IANAL, but Storage Technologist. On Tue, 14 Jan 2003, PETERSON,SCOTT K (HP-USA,ex1) wrote: > Larry -- > > 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 think you may be saying that if A is not a copyright infringement of B, > then there is no copyright problem and thus the GPL is not relevant. That's > fine for distribution of A by itself. However, the person who wants to > distribute A and B together (even if only as a mere aggregation) still needs > the permission of the B's copyright owner and thus, needs to know what > conditions the GPL might require. (Look up both sleeves. No contract > obligation in sight. Really!) > > I may not be understanding what you are saying, and we may be talking in > circles. Perhaps we should await some opportunity when we can sit back in > the comfort of some overstuffed chairs, possibly with a beverage in hand, > and have a relaxing interactive discussion. > > -- Scott > > I can now see how confusing my use of A+B is. That is based on a > hypothetical in a parallel discussion branch - I introduced it in my reply > to David Ravicher: > --------------------- > 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 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: Tuesday, January 14, 2003 12:24 PM > To: 'PETERSON,SCOTT K (HP-USA,ex1)' > Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED]; 'Andre Hedrick'; > 'Ian Lance Taylor' > Subject: RE: "Derivative Work" for Software Defined > > > 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 > > [to avoid more message bloat, I'll clip down to the hypothetical] > > -----Original Message----- > > From: PETERSON,SCOTT K (HP-USA,ex1) [mailto:[EMAIL PROTECTED]] > > Sent: Tuesday, January 14, 2003 6:52 AM > > To: '[EMAIL PROTECTED]' > > Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED]; > > '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 > > [EMAIL PROTECTED] > > > > > > -----Original Message----- > > From: Lawrence E. Rosen [mailto:[EMAIL PROTECTED]] > > Sent: Monday, January 13, 2003 11:13 PM > > To: 'PETERSON,SCOTT K (HP-USA,ex1)'; 'Andre Hedrick'; 'Ian > > Lance Taylor' > > Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED] > > 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:[EMAIL PROTECTED]] > > > Sent: Monday, January 13, 2003 10:30 AM > > > 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 > > > > > > -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3