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Re: Using non-GPL libraries in a GPL program


From: Alexander Terekhov
Subject: Re: Using non-GPL libraries in a GPL program
Date: Tue, 27 May 2008 12:16:33 +0200

Dave Crossland wrote:
> 
> On May 26, 2:47 pm, Alexander Terekhov <address@hidden> wrote:
> > John Hasler wrote:
> > > Juha Nieminen writes:
> > > > Does this mean that I cannot use an MIT-licensed library in a GPL 
> > > > program
> > > > (even though I can use it in basically everything else)?
> >
> > Welcome to the GNU Republic. The most funny thing is that under GNUtian
> > viral theory of "work based on" and "relicensing" concept, the GPL is
> > actually incompatible with public domain because unprotected material
> > can't be copyright licensed at all.
> 
> IANAL, but this makes no sense: Public Domain works can be included in
> a copyrighted work, and if modified, the modifications are subject to
> copyright. 

The copyright in a derivative work doesn't cover elements taken from
preexisting work and employed in a derivative work. (It "extends only 
to the material contributed by the author of such work, as 
distinguished from the preexisting material employed in the work" 17 
USC 103). Hence it is absolutely impossible to have a derivative work 
based on preexisting public domain material copyright licensed "as a 
whole" under GNUtian viral theory of "work based on". Got it now?

[...]

> You have totally misunderstood what "sublicensing" is: It is a legal

The act of sublicensing is what happens when a licensee becomes a
licensor to some other party by granting some or all of the exclusive 
rights that they received as a licensee.

The thing is that nonexclusive copyright licenses are generally 
indivisible as a matter of law (this is referred to as "settled law" in 
every source you can find) unless the licensing contract states 
otherwise. This means that a nonexclusive license does not carry an 
implicit sublicense agreement. With the exception of the MIT License 
(which contains a sublicense clause), permissive licenses generally do 
not include a sublicense right and instead offer a direct grant of 
rights from the original licensor to any recipient of source code 
released by him or her under that license. 

Actually, according to the 9th Circuit, exclusive licensees are not 
transferable or sublicenseable either unless the licensing contract 
states otherwise. See Gardner v. Nike, a case which appears to  have 
surprised a lot of lawyers at the time: 

http://www.law.berkeley.edu/institutes/bclt/pubs/annrev/exmplrs/csum/gardnervcsum.pdf

Hth.

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)


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