7 ms·

Beyond Thesis: Does the GPL go to far? What constitutes a derivative work?

12 points by luminousbit 16y ago

michael_dorfman 16y ago
I'm not a lawyer, but... I think this article misses the point, and I think it goes wrong right about here: The GPL is a license. It deals with copyright law. It defines who is allowed to copy & distribute the software (everyone). The GPL "deals with" copyright law, but that does not mean that all of its force relies upon copyright law, nor does it mean that the definition of "derivative work" in copyright law has any bearing on the problem at hand. The GPL is a license, granting users the right to use the software. So, we can use WordPress, because the author allows us to (by means of the GPL). The GPL puts restrictions on our use. Among these, that if we wish to produce any derivative works (under the GPL's definition of "derivative"), we must also release these under the GPL. As far as I can tell, copyright law has nothing to do with this restriction.
- jmillikin 16y ago
  > The GPL "deals with" copyright law, but that does not mean that all of its force relies upon copyright law Actually, it does. The GPL is a copyright license, which means its only restrictions derive from copyright law. It can't prevent activities otherwise allowed by copyright. > The GPL is a license, granting users the right to use the software. So, we can use WordPress, because the author allows us to (by means of the GPL). The GPLv2 (the version in discussion here) explicitly denies that it covers running software: Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted > The GPL puts restrictions on our use. Among these, that if we wish to produce any derivative works (under the GPL's definition of "derivative"), we must also release these under the GPL. There is no such restriction. You are legally allowed to produce derivative works, without releasing the source to anybody. The catch is to do so, you must not distribute the derived work in a way which requires copyright permission. Once you distribute a derived work, copyright (and thus the GPL) applies.
  - michael_dorfman 16y ago
    Thanks for setting me straight on all points. This means, I then assume, that the usage of WordPress (for example) is regulated solely via the "Terms and Conditions" for WordPress, and the GPL is not a factor? If that's the case, couldn't WordPress simply add a line to their "Terms and Conditions" stating that all access to WordPress functions via Themes are limited to those themes released under the GPL?
    - jmillikin 16y ago
      They could, but it wouldn't do any good. Theme authors who aren't running their site on Wordpress won't be covered by the Wordpress ToC, and I don't think WP would sue users who install a non-GPL theme.
    - sigzero 16y ago
      "I" would say "no". If WP has public api calls and that is all a theme uses, then WP cannot force GPL upon it. The theme is NOT a derivative in that case in any rational sense of the word. Regardless of what WP thinks. If you incorporate GPL'd code into your theme then I believe you abide by the license. Regardless of what the author of the theme thinks.
      - xiaoma 16y ago
        By "public api calls", do you mean public as in public domain or as in under the GPL? If they're in the public domain, sure. If they're GPLed, then follow the license as written.
        jmillikin 16y ago
        APIs can't be copyrighted, at least in the US -- this is why projects like Wine are legal. Software which calls a GPL'd library's API is not considered a derivative work of the library. Otherwise, releasing X11/BSD/etc code which calls GPL libraries wouldn't be legal.
        sigzero 16y ago
- deleted 16y ago
  [deleted]
- cschwarm 16y ago
  > Among these, that if we wish to produce any derivative works (under the GPL's definition of "derivative"), we must also release these under the GPL. This is not quite correct, in my opinion. Copyright only applies to your work, and works which are derivative works according to copyright. You can't write a license that requires someone to release 'all' his work under the GPL, for example. (It may be different if it's a contract.) That's just what the FSF wants you to think. Of course, it usually doesn't pay to go through the legal hassel to defend yourself from unjustified claims by the FSF -- thus it's an effective chilling strategy. For more information, see http://www.law.washington.edu/lta/swp/Law/derivative.html http://www.law.washington.edu/lta/swp/Law/derivative.html
  - rbanffy 16y ago
    > defend yourself from unjustified claims by the FSF Has something like this ever happened?
    - cschwarm 16y ago
      You mean in court? Of course, not! That's the point of a chilling strategy, you know?
      - rbanffy 16y ago
        So, nothing happens and, therefore, it's part of a chilling strategy? I am not sure if I can follow.
        cschwarm 16y ago
        It's a chilling strategy because the costs of not using a GPL software is always less than a legal fight. Also, you do have rather established legal definitions of 'collective' and 'derivative works'. See, for example, Laurence Rosen: "Open Source Licensing". Then, why does the GPL3 not use them? Instead, is uses 'work based on' IIRC. So, why's that? In my opinion, the resulting (legal) uncertainty is intentional. Another reason: If the interpretation of the FSF is true, all works that ever linked dynamically against a Microsoft library would be derivative works of said library. Does it makes sense that companies like Adobe try to build a business on such shaky legal grounds?
beagle3 16y ago
For f*ck sake, no. It doesn't go far enough. Don't like the GPL? Don't use it; it's just that you then fall back on standard interpretations of "derivative work", which -- you'll find, are at least as restrictive. 8 notes are enough to constitute derivative work for music, as are 4 paragraphs. I'm not aware of specifics for code, but I believe they'll be even less comfortable for you than any gpl interpretation.
- rbanffy 16y ago
  > I'm not aware of specifics for code Two lines of Perl, two for Python, 10 keystrokes for Lisp and a region of 1000 pixels of Smalltalk, given standard fonts as shown on a class browser. About a hundred lines for Java or C# ;-)
- pvg 16y ago
  It helps to read the article before getting indignant. And then maybe skipping the indignant part. The author is talking about cases where no part of the original at all is included in the new (and, he argues, not actually derivative) work.
rbanffy 16y ago
If it embeds, in itself, no Wordpress code (not even the examples) and is distributed without any part of WP, I can't see why a WP theme should be considered a derivative work. You could call the WP environment the theme runs in forms a DSL on top of PHP and that a WP theme is no more a derived work of WP than WP is derived from PHP. If, however, it is based on an example template or shares non-trivial code with it, then it's derivative work and should be under the GPL.

12 points by luminousbit 16y ago

I'm not a lawyer, but... I think this article misses the point, and I think it goes wrong right about here: The GPL is a license. It deals with copyright law. It defines who is allowed to copy & distribute the software (everyone). The GPL "deals with" copyright law, but that does not mean that all of its force relies upon copyright law, nor does it mean that the definition of "derivative work" in copyright law has any bearing on the problem at hand. The GPL is a license, granting users the right to use the software. So, we can use WordPress, because the author allows us to (by means of the GPL). The GPL puts restrictions on our use. Among these, that if we wish to produce any derivative works (under the GPL's definition of "derivative"), we must also release these under the GPL. As far as I can tell, copyright law has nothing to do with this restriction.

jmillikin 16y ago
> The GPL "deals with" copyright law, but that does not mean that all of its force relies upon copyright law Actually, it does. The GPL is a copyright license, which means its only restrictions derive from copyright law. It can't prevent activities otherwise allowed by copyright. > The GPL is a license, granting users the right to use the software. So, we can use WordPress, because the author allows us to (by means of the GPL). The GPLv2 (the version in discussion here) explicitly denies that it covers running software: Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted > The GPL puts restrictions on our use. Among these, that if we wish to produce any derivative works (under the GPL's definition of "derivative"), we must also release these under the GPL. There is no such restriction. You are legally allowed to produce derivative works, without releasing the source to anybody. The catch is to do so, you must not distribute the derived work in a way which requires copyright permission. Once you distribute a derived work, copyright (and thus the GPL) applies.
- michael_dorfman 16y ago
  Thanks for setting me straight on all points. This means, I then assume, that the usage of WordPress (for example) is regulated solely via the "Terms and Conditions" for WordPress, and the GPL is not a factor? If that's the case, couldn't WordPress simply add a line to their "Terms and Conditions" stating that all access to WordPress functions via Themes are limited to those themes released under the GPL?
  - jmillikin 16y ago
    They could, but it wouldn't do any good. Theme authors who aren't running their site on Wordpress won't be covered by the Wordpress ToC, and I don't think WP would sue users who install a non-GPL theme.
  - sigzero 16y ago
    "I" would say "no". If WP has public api calls and that is all a theme uses, then WP cannot force GPL upon it. The theme is NOT a derivative in that case in any rational sense of the word. Regardless of what WP thinks. If you incorporate GPL'd code into your theme then I believe you abide by the license. Regardless of what the author of the theme thinks.
    - xiaoma 16y ago
      By "public api calls", do you mean public as in public domain or as in under the GPL? If they're in the public domain, sure. If they're GPLed, then follow the license as written.
      - jmillikin 16y ago
        APIs can't be copyrighted, at least in the US -- this is why projects like Wine are legal. Software which calls a GPL'd library's API is not considered a derivative work of the library. Otherwise, releasing X11/BSD/etc code which calls GPL libraries wouldn't be legal.
      - sigzero 16y ago
deleted 16y ago
[deleted]
cschwarm 16y ago
> Among these, that if we wish to produce any derivative works (under the GPL's definition of "derivative"), we must also release these under the GPL. This is not quite correct, in my opinion. Copyright only applies to your work, and works which are derivative works according to copyright. You can't write a license that requires someone to release 'all' his work under the GPL, for example. (It may be different if it's a contract.) That's just what the FSF wants you to think. Of course, it usually doesn't pay to go through the legal hassel to defend yourself from unjustified claims by the FSF -- thus it's an effective chilling strategy. For more information, see http://www.law.washington.edu/lta/swp/Law/derivative.html http://www.law.washington.edu/lta/swp/Law/derivative.html
- rbanffy 16y ago
  > defend yourself from unjustified claims by the FSF Has something like this ever happened?
  - cschwarm 16y ago
    You mean in court? Of course, not! That's the point of a chilling strategy, you know?
    - rbanffy 16y ago
      So, nothing happens and, therefore, it's part of a chilling strategy? I am not sure if I can follow.
      - cschwarm 16y ago
        It's a chilling strategy because the costs of not using a GPL software is always less than a legal fight. Also, you do have rather established legal definitions of 'collective' and 'derivative works'. See, for example, Laurence Rosen: "Open Source Licensing". Then, why does the GPL3 not use them? Instead, is uses 'work based on' IIRC. So, why's that? In my opinion, the resulting (legal) uncertainty is intentional. Another reason: If the interpretation of the FSF is true, all works that ever linked dynamically against a Microsoft library would be derivative works of said library. Does it makes sense that companies like Adobe try to build a business on such shaky legal grounds?

beagle3 16y ago

For f*ck sake, no. It doesn't go far enough. Don't like the GPL? Don't use it; it's just that you then fall back on standard interpretations of "derivative work", which -- you'll find, are at least as restrictive. 8 notes are enough to constitute derivative work for music, as are 4 paragraphs. I'm not aware of specifics for code, but I believe they'll be even less comfortable for you than any gpl interpretation.

rbanffy 16y ago
> I'm not aware of specifics for code Two lines of Perl, two for Python, 10 keystrokes for Lisp and a region of 1000 pixels of Smalltalk, given standard fonts as shown on a class browser. About a hundred lines for Java or C# ;-)
pvg 16y ago
It helps to read the article before getting indignant. And then maybe skipping the indignant part. The author is talking about cases where no part of the original at all is included in the new (and, he argues, not actually derivative) work.

rbanffy 16y ago

If it embeds, in itself, no Wordpress code (not even the examples) and is distributed without any part of WP, I can't see why a WP theme should be considered a derivative work. You could call the WP environment the theme runs in forms a DSL on top of PHP and that a WP theme is no more a derived work of WP than WP is derived from PHP. If, however, it is based on an example template or shares non-trivial code with it, then it's derivative work and should be under the GPL.