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Re: license question with non-GPL library

From: Alexander Terekhov
Subject: Re: license question with non-GPL library
Date: Wed, 16 Aug 2006 18:29:57 +0200

David Kastrup wrote:
> GPL because the work as a whole has to be licensed under the GPL, 

Man oh man. Go back to doctor, retard. Try another one.

2. GPL Terminology and Interpretation

a) “Works based on the Program”

The first operative Section of the GPL (Section 0) reads as follows:

This License applies to any program or other work which contains a
notice placed by the copyright holder saying it may be distributed under
the terms of this General Public License. The ‘Program,’ below, refers
to any such program or work, and a ‘work based on the Program’ means
either the Program or any derivative work under copyright law: that is
to say, a work containing the Program or a portion of it, either
verbatim or with modifications and/or translated into another language.
(Hereinafter, translation is included without limitation in the term
‘modification.’) Each licensee is addressed as ‘you.’

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, and the output from the Program is
covered only if its contents constitute a work based on the Program
(independent of having been made by running the Program). Whether that
is true depends on what the Program does.

As is common in commercial contracting practice, the first Section of
the GPL contains a number of definition and specifications that apply to
the document as a whole (e.g., the first sentence and the first ten
words of the second sentence define the meaning of the capitalized term
“Program”). Less common, however, are the explanatory notes that the GPL
drafters interwove with the legally binding definitions (e.g., the last
sentence acknowledges that the conditions in the preceding half-sentence
may not always be met in practice). The cause for this anomaly seems to
lie in the genesis of the document: it was written by programmers for
programmers. In order to make the document useful for non-lawyers (and
projects without a budget for legal advice), and to establish the GPL as
a standard, the GPL drafters tried to draft it as user-friendly and
accessible to programmers as possible.

Along these lines, the second sentence of Section 0 defines “works based
on the Program” as the Program itself or “any derivative work under
copyright law” followed by a (not entirely accurate) interpretive
explanation regarding what the term “derivative works” means under
copyright law. This explanation, introduced with “that is to say,” gives
an indication of what the GPL drafters thought, hoped or may argue in a
dispute, is the meaning of the term “derivative works.” Section 2 of the
GPL contains additional explanations and declarations of intent, which
even include “collective works,” i.e., a term defined by the Copyright
Act in contrast to the term “derivative work.”250 In order to resolve
these textinternal contradictions, it would seem appropriate to rely on
the “operative” portion of the definition in Section 0 (which contains
the reference to the Copyright Act) and treat the “explanatory notes” as
statements of opinion that have been added for convenience purposes
only.251 Accordingly, the GPL would be interpreted to define “work based
on the Program” to mean “derivative work as defined by the Copyright

b) Derived Works

The first sentence of Section 2 of the GPL permits modifications to the
GPLed program in reference to the defined term “work based on the
Program.” The following sentences of Section 2 contain a number of
license conditions and explanations and use a number of other terms to
describe the result of modifications besides “work based on the
Program,” including modified files,253 modified program,254 and modified
work.255 The critical Subsection (b) refers to “any work . . . that in
whole or in part contains or is derived from the Program or any part

Taken out of context, each of these terms seems to go well beyond the
statutory definition of derivative works in the Copyright Act, because
the statutory definition is not satisfied by every modification or any
work that contains any part of another work, or that is derived from any
part of another work. As discussed, under the Copyright Act, a
combination of code with a GPLed program constitutes a derivative work
of the GPLed program only if the combination (i) is sufficiently
permanent, (ii) contains significant and creative portions of the GPLed
program, (iii) is creative in its own right, and (iv) involves
significant and creative internal changes to the GPLed program.256

In context, however, it appears that the drafters of the GPL randomly
chose substitutes to the somewhat awkward term “work based on the
Program” and used the substitute terms synonymously to improve the
sentence flow and readability. This impression is confirmed throughout
the document, which also uses other substitutes, including the
“derivative or collective works based on the Program”257 and “derivative

Some of the explanations throughout the GPL as well as the Free Software
Foundation’s FAQ259 and “Lesser General Public License”260 imply that
the drafters of the GPL intended to cover software combinations that
would not qualify as derivative works under the Copyright Act according
to the test developed in this Article.261 This is primarily evidence of
a difference of opinion in the application of copyright law––and does
not have to mean that the condition in Section 2(b) of the GPL covers
more than derivative works as defined by the Copyright Act. Yet,
uncertainties remain given the fact that the “explanations” appear
within the license text.

"RMS: We have no say in what is considered a derivative work. That
 is a matter of copyright law, decided by courts. When copyright
 law holds that a certain thing is not a derivative of our work,
 then our license for that work does not apply to it. Whatever our
 licenses say, they are operative only for works that are
 derivative of our code.

 A license can say that we will treat a certain kind of work as if
 it were not derivative, even if the courts think it is. The Lesser
 GPL does this in certain cases, in effect declining to use some
 of the power that the courts would give us. But we cannot tell the
 courts to treat a certain kind of work as if it were derivative,
 if the courts think it is not." 


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