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The relevant clauses read as follows: b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived f

The relevant clauses read as follows: b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. [...] 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. The post on which we're commenting says that "derived" comes from copyright law, and not from the text of the GPL, because the GPL cannot supercede copyright law. What I'm pointing out is that's incorrect - the definition of "derived" comes from what the license itself considers derived. This is because the license puts conditions on "derived from" works in the above term. This is true even if the license says "see copyright law for definition of term X". When trying to determine what "derived works" means, the intent of the license is relevant. The license cannot restrict your rights beyond what copyright law allows it to do, but it can grant you additional rights on terms of its own choosing, including very restrictive terms. Importantly for this conversation, something that is derived from "any part" of the program may or may not be a "derived work" of the whole under US copyright law, but may be a "derived work" for the purposes of the above clauses regardless. Plus the latter paragraph has an AND addendum - "AND can be reasonably considered independent and separate works in themselves" - which can restrict beyond the referenced legal definition of "derived".

zarzavat 5y ago
Courts are supposed to balance the bargaining power of the parties when considering the enforceability of terms. So for the GPL which is a boilerplate clickwrap contract where the parties have not necessarily even communicated before, a court may take a narrow interpretation of such terms. So the unsatisfying answer (to programmers) may be: it depends who you are.
- michaelmrose 5y ago
  It's not at least in the US a contract at all its a license. As the text says you don't have to agree to it but have no right to distribute said software if you don't agree and no you can't ask a judge for better terms.
  - pjmlp 5y ago
    In Europe unless the law has changed, in most jurisdictions the typical US style licenses are considered void unless the consumer of such software has been given and agreed to the license before acquisition. That is why most ship wrapped software started putting a reference to the license on the box.
    - throwawaylinux 5y ago
      If the license is void then copyright law applies.
      - tsimionescu 5y ago
        Yes, but copying a piece of software from a CD into program memory or onto my own hard-drive for archival purposes has been established as a fair-use exemption. So, if I legally acquire a copy of a program (say, I buy a CD), it can't impose extra restrictions after-the-fact through an EULA that only appears when I run it, and I am well within my rights to use my copy (e.g. by copying it into RAM/CPU icache to run it) even if I don't abide by the EULA, according to European Union jurisprudence. For example, many game EULAs (used to?) impose a restriction on lending the CD to others (you had to seek explicit permission from the copyright holder to do so). If this clause is only knowable after buying the game, then in the EU it is null and void, and I can still use the software and lend it to others per regular copyright law. If, however, the license must be accepted before purchase/download, my purchase/download can be considered acceptance of this clause and I then have no right to use the software if I don't abide by the license agreement, since the copy was distributed to me only under specific conditions. This is just like if I buy a book, I have every right to read it, lend it or re-sell it; but we can also sign a contract under which you give me the book but with no right to read past page 87, and no right to lend it to others.
tsimionescu 5y ago
That is not necessarily the part I was thinking of - I had indeed made some confusion between what the GPL says and what the LGPL and other exceptions-to-the-GPL licenses say. I have detailed this more in another post, but basically my argument is that the very existence of the LGPL makes sense only if we take the GPL's definition of derived works to include programs which dynamically link with the GPL work (and this is indeed what e.g. Stallman believes). There are also some similar exemptions in the GPL license for GCC, to make sure that the binary resulting from compiling a program with GCC does not have to be distributed under GCC's license terms even if it might be a derived work of GCC itself (e.g. when the compiler includes bits of code that it does consider copyrighted, such as replacing calls to the library function memcpy with an optimized version that is defined in GCC's source code). I absolutely agree with you that, when distributing a combined work including GPL code very directly (say, a CD with Linux + some proprietary software), the GPL may well impose extra restrictions even on parts that are not considered derived works under copyright law. You are free to not accept those extra restrictions, but then you have no right to distribute the GPL works at all (though you can still distribute the parts that are not derived works independently).

zarzavat 5y ago

Courts are supposed to balance the bargaining power of the parties when considering the enforceability of terms. So for the GPL which is a boilerplate clickwrap contract where the parties have not necessarily even communicated before, a court may take a narrow interpretation of such terms. So the unsatisfying answer (to programmers) may be: it depends who you are.

michaelmrose 5y ago
It's not at least in the US a contract at all its a license. As the text says you don't have to agree to it but have no right to distribute said software if you don't agree and no you can't ask a judge for better terms.
- pjmlp 5y ago
  In Europe unless the law has changed, in most jurisdictions the typical US style licenses are considered void unless the consumer of such software has been given and agreed to the license before acquisition. That is why most ship wrapped software started putting a reference to the license on the box.
  - throwawaylinux 5y ago
    If the license is void then copyright law applies.
    - tsimionescu 5y ago
      Yes, but copying a piece of software from a CD into program memory or onto my own hard-drive for archival purposes has been established as a fair-use exemption. So, if I legally acquire a copy of a program (say, I buy a CD), it can't impose extra restrictions after-the-fact through an EULA that only appears when I run it, and I am well within my rights to use my copy (e.g. by copying it into RAM/CPU icache to run it) even if I don't abide by the EULA, according to European Union jurisprudence. For example, many game EULAs (used to?) impose a restriction on lending the CD to others (you had to seek explicit permission from the copyright holder to do so). If this clause is only knowable after buying the game, then in the EU it is null and void, and I can still use the software and lend it to others per regular copyright law. If, however, the license must be accepted before purchase/download, my purchase/download can be considered acceptance of this clause and I then have no right to use the software if I don't abide by the license agreement, since the copy was distributed to me only under specific conditions. This is just like if I buy a book, I have every right to read it, lend it or re-sell it; but we can also sign a contract under which you give me the book but with no right to read past page 87, and no right to lend it to others.

tsimionescu 5y ago

That is not necessarily the part I was thinking of - I had indeed made some confusion between what the GPL says and what the LGPL and other exceptions-to-the-GPL licenses say. I have detailed this more in another post, but basically my argument is that the very existence of the LGPL makes sense only if we take the GPL's definition of derived works to include programs which dynamically link with the GPL work (and this is indeed what e.g. Stallman believes). There are also some similar exemptions in the GPL license for GCC, to make sure that the binary resulting from compiling a program with GCC does not have to be distributed under GCC's license terms even if it might be a derived work of GCC itself (e.g. when the compiler includes bits of code that it does consider copyrighted, such as replacing calls to the library function memcpy with an optimized version that is defined in GCC's source code). I absolutely agree with you that, when distributing a combined work including GPL code very directly (say, a CD with Linux + some proprietary software), the GPL may well impose extra restrictions even on parts that are not considered derived works under copyright law. You are free to not accept those extra restrictions, but then you have no right to distribute the GPL works at all (though you can still distribute the parts that are not derived works independently).