6 ms·

Let's remove the license and just look at what copyright says in order to understand your example. You have some copyrighted work and you want to make copies, a

by belorn 5y ago

Let's remove the license and just look at what copyright says in order to understand your example. You have some copyrighted work and you want to make copies, and you do not have a copyright license from the author of said work. It this legal? Answer is mostly going to be no, especially if you are going to sell the copies. Commercially exploiting someones else's copyrighted work without a license is very often illegal. Now let's say you do have a license, and the license is GPL. The license says that you have permission as long you do not combine the library using a linker with other programs that is not GPL. Do you have permission to copy the work if you disregard the conditions of the license? Likely answer: no. Copyright do have a few exceptions. If you bought a copyrighted work like say Microsoft Word, there is an exception that says that you can also make a copy in memory in order to run it. Copyright law in some countries needed to be updated to do this, while in other places it occurred through precedents, but it was something that needed to occur. There might also exist a similar exception for running the program under Microsoft Windows, including using libraries called DLLs. Exceptions to the exclusivity of copyright is sometimes needed in order for the world to make sense. The legal question then that remain is if the situation with FictitiousLibC has such an exception. That is less certain. There might be a copyright law exception, or there might not exist. What do you think?

tsimionescu 5y ago
The main point of my argument, and the main concern I feel with GPL-style licenses, is the notion of "do I have to distribute my work under the terms of the GPL even if I don't distribute any GPL code directly; in other words, when is my program a derived work of a GPL work?". If instead I am distributing GPL code directly, the question is more clear - as you say, copyright law makes few exceptions there. But again, if my program doesn't directly include any code at all from a GPL work, but it does depend on such code to exist on the end-user system, knowing in what circumstances my code is a derived work and thus can only be distributed under the terms of the GPL is much harder. This is exactly the case of the kernel modules: the people distributing the kernel modules are often NOT distributing Linux itself. But, can their modules be considered derived works of the Linux kernel? Note that this kind of question can also arise in traditional copyright. I can make a play that very much resembles a novel, and depending on many ultimately subjective factors my play may or may not be considered a derived work of that novel. If I am directly including substantial parts of the novel, then the answer is pretty clear, but a work that doesn't have a single word of the original can still be a derived work (most obviously, a translation is a derived work, but it likely literally doesn't include a single word in common with the original work).
- butlerm 5y ago
  Unfortunately the FSF's idea of what a derivative work is largely something they made up with no basis in statutory law and which has never been tested in court. It basically consists of wishful thinking on their part. In the US, a derivative work has a legal definition in Title 17 of the United States Code, and anything that is purportedly a derivative work that doesn't clearly fall under the legal definition or established common law on the subject is of little matter. Lawyers love to engage in wishful thinking on behalf of their clients and rarely get anywhere because they are not neutral arbiters but rather advocates for a one sided position of one kind or another. In this case FSF associated lawyers appear to be completely out of touch with reality, but are incredibly influential in persuading others to be equally out of touch. And what more could you ask of an advocate for your position than that? A reality distortion field for hire.
  - seba_dos1 5y ago
    If you persuade enough people to be "out of touch with reality", they're not out of touch with reality anymore, because it's the reality that got changed.
    - butlerm 5y ago
      That may be true, but in this case the relevant parties to be persuaded are federal appellate judges before it can fairly be said that reality has changed on the ground. How likely they are to be persuaded by a position that has no apparent basis in the statutory text is a real question. As far as I can tell, no one making these rather unusual claims has even tried to outline such an argument. Why should anyone be persuaded by a legal position that has internal logic that has never been explicated anywhere? If lawyer A writes to lawyer B claiming that B's client is creating a derivative work but cannot explain why, lawyer B is more than justified in laughing them to scorn. Even if B did create a derivative work according to some unknown and unheard of legal argument acceptable to the courts, fair use could apply anyway. But one can hardly begin to look at the fair use factors if lawyer A could not even identify how a legally cognizable derivative work is being created in the first place.
  - 5y ago

by belorn 5y ago

tsimionescu 5y ago

The main point of my argument, and the main concern I feel with GPL-style licenses, is the notion of "do I have to distribute my work under the terms of the GPL even if I don't distribute any GPL code directly; in other words, when is my program a derived work of a GPL work?". If instead I am distributing GPL code directly, the question is more clear - as you say, copyright law makes few exceptions there. But again, if my program doesn't directly include any code at all from a GPL work, but it does depend on such code to exist on the end-user system, knowing in what circumstances my code is a derived work and thus can only be distributed under the terms of the GPL is much harder. This is exactly the case of the kernel modules: the people distributing the kernel modules are often NOT distributing Linux itself. But, can their modules be considered derived works of the Linux kernel? Note that this kind of question can also arise in traditional copyright. I can make a play that very much resembles a novel, and depending on many ultimately subjective factors my play may or may not be considered a derived work of that novel. If I am directly including substantial parts of the novel, then the answer is pretty clear, but a work that doesn't have a single word of the original can still be a derived work (most obviously, a translation is a derived work, but it likely literally doesn't include a single word in common with the original work).

butlerm 5y ago
Unfortunately the FSF's idea of what a derivative work is largely something they made up with no basis in statutory law and which has never been tested in court. It basically consists of wishful thinking on their part. In the US, a derivative work has a legal definition in Title 17 of the United States Code, and anything that is purportedly a derivative work that doesn't clearly fall under the legal definition or established common law on the subject is of little matter. Lawyers love to engage in wishful thinking on behalf of their clients and rarely get anywhere because they are not neutral arbiters but rather advocates for a one sided position of one kind or another. In this case FSF associated lawyers appear to be completely out of touch with reality, but are incredibly influential in persuading others to be equally out of touch. And what more could you ask of an advocate for your position than that? A reality distortion field for hire.
- seba_dos1 5y ago
  If you persuade enough people to be "out of touch with reality", they're not out of touch with reality anymore, because it's the reality that got changed.
  - butlerm 5y ago
    That may be true, but in this case the relevant parties to be persuaded are federal appellate judges before it can fairly be said that reality has changed on the ground. How likely they are to be persuaded by a position that has no apparent basis in the statutory text is a real question. As far as I can tell, no one making these rather unusual claims has even tried to outline such an argument. Why should anyone be persuaded by a legal position that has internal logic that has never been explicated anywhere? If lawyer A writes to lawyer B claiming that B's client is creating a derivative work but cannot explain why, lawyer B is more than justified in laughing them to scorn. Even if B did create a derivative work according to some unknown and unheard of legal argument acceptable to the courts, fair use could apply anyway. But one can hardly begin to look at the fair use factors if lawyer A could not even identify how a legally cognizable derivative work is being created in the first place.
- 5y ago