David Grothe wrote:
At 01:47 PM 8/6/2003 Wednesday, John A. Boyd Jr. wrote:
The whole notion of "derivative" is a little odd in these discussions. Is my X.25, dating back to 1980, a "derivative work" of Linux because it uses an inline function for spin locks? (It doesn't, it uses the LiS abstraction.) Doesn't seem intuitive, does it?
It also doesn't matter that you are using an old X.25 implementation. Again, to the extent that the LiS implementation can be judged to have copied licensed code, that copied licensed code is subject to its own license, and if that license acts virally as the GPL does, so as to make your new X.25 implementation entirely GPL'ed, then that's what it does.
But also, again, the burden is on the infringer. If that old X.25 code was not yours but was subject to a different license that was incompatible with the GPL, you would find yourself in quite a pickle. Specifically, you would be liable for infringement damages both according to the GPL (which only calls for GPL'ing the whole "new" implementation), and to the other license(s) (which may levy monetary or other damages for making the code open, for example).
But, I don't think this is not "intuitive", or to use a better term, sensible. I think it is entirely sensible, if you accept the premises that copyright law puts forward. And that is not a given, since many in the open source movement do not accept those premises.
As a more general comment, I think this issue will get a lot of attention in the coming days, and that this attention will spill over into LiS. The SCO lawsuits could affect LiS, as could any legal aftermath of the entertainment industry's ongoing battles with consumers over copyright issues. SCO might see fit, for example, to argue both that the GPL applies to LiS and makes it part of the Linux kernel, and that thereby LiS users are subject to their $699 license fee for Linux. If they do, the burden will be on LiS users, not just on SCO, to prove otherwise.
-John
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