On 2013-03-22,
Joerg.S...@fokus.fraunhofer.de <
Joerg.S...@fokus.fraunhofer.de> wrote:
> In article <HWH2t.165667$O52....@newsfe10.iad>,
> unruh <
un...@invalid.ca> wrote:
>>On 2013-03-21,
Joerg.S...@fokus.fraunhofer.de <
Joerg.S...@fokus.fraunhofer.de> wrote:
>>> In article <
87y5sup...@araminta.anjou.terraraq.org.uk>,
>>> Richard Kettlewell <
r...@greenend.org.uk> wrote:
>>>
>>>>> Derivative works are precisely that, works which rely in some ill
>>>>> defined way on other works. Would a court regard a user program which
>>>>> uses kernel calls as derivative works?
>>>>
>>>>The usual interpretation (for instance, the one adopted in US law) is
>>>>that a derivative work is one based on another. User programs are not
>>>>(in general) based on the kernel.
>>
>>Being "based on" is not sufficient. Moby Dick is based on the Bible, but
>>is not a derivative work of the Bible. On the other hand Gone with the
>>Wind is based on the novel of that name ( with substantial differences)
>>but a court has ruled that the copyright on the book applies to the
>>movie.
>>The big problem is that "derivtive work" is an extremely ill defined
>>term in copyright law, which of course means that barrack room lawyers
>>can have a field day, unconstrained by anything.
>
> You are rplying here to text that was probably written by "Richard Kettlewell",
> but you are right that with respect to certain interpretations, "derivative
> work" may be defined too weak. On the other side, this usually does not hit
> problems in the software area.
The problem is not whether it is too weak or too strong. the problem is
that it is almost completely undefined, which leaves the issue up to the
wide lattitude of the courts. There is no test you can apply to
determine whether or not a work is derivative or not. Thus SCO claimed
that all Linux was a derivative work of their work.
>
>
>>> And in special, a library called by a problem being under GPL does not make
>>> that (preexisting) library a derivative work of the program that calls it.
>>
>>That would be a very strange definition of derivative work.
>
> But this is exactly what Debian is using when attacking OSS projects.
>
> Background:
>
> - When Debian started their attacks, they claimed that cdrecord had a
> GPL license problem even though cdrecord was entirely compiled from
> code under GPL.
>
> - Later after cdrecord was made 100% CDDL, Debian continued to claim
> that there is a GPL problem in cdrecord.
>
> - Some years later, Debian realized that they were telling nonsense
> and complained about the fact that mkisofs (a progam under GPL) is
> using libraries under CDDL.
>
> As it should be obvious that libraries that exist for a longer time than
> cdrtools (or mkisofs) cannot be a derivative work from a program that is just
> using them, you know what we can ignore the rants from Debian. They are just
> attempts to attack OpenSource.
The question could be "Is a work which incorporates/links with a library
a derivative work of that library. (Thus any work which runs on a linux
computer would be a derivative work of the kernel which is GPL2). Such a
broad interpretation would make software impossible, but it cannot be
ruled out that that is how a court could decide.
>
>
>>> In the US, the GPL is a not a contract but a "license". This is made to protect
>>> customers against claims from the Copyright holders. US Copyright law title 17
>>> paragraph 106 lists all claims a licens is permitted to make. The redifinition
>>> of the term "derivative work" is not in that list and for this reason, the
>>> related text in the GPL is illegal and void.
>>
>>Derivative work is defined in law, and no contract or license cah
>>redefine it if the force of the contract or license comes from the
>>copyright act. Of course, in a contract you can make any claims you
>>want, and if the other party agrees, then, assuming it is not explicitly
>>illegal, it can be enforced under copyright law. But certainly neither
>>the GPL or CDDL are contracts.
>
> In Germany and Europe, they are contracts (but the rules for "business
> conditions" apply to protect customers).
I am dubious, since there is no agreement, and agreement is crucial for
contracts. Licenses can be imposed unilaterally.
>
>>Thus those sections under the GPL which may appear to define derivative
>>work ( they do not use that term) are their interpretation of how the
>>law would apply to them and their license. Unfortuantely or otherwise,
>>it is the courts that determine such things, not the license writer. And
>>since the license is one sided (ie is not agreed to by the two parties,
>>but is imposed by one) it will tend to interpreted as liberally for the
>>licensee as possible. Since the licensor had the opportunity to make the
>>license clear, any ambiguity will be resolved in favour of the person
>>who did not have that opportunity.
>
> This are the rules in Europe for contracts were "business conditions" apply.
>
>>Ie, the related text in the GPL is NOT illegal. It is simply irrelevant,
>>and at best expresses their understanding of the meaning of the legal
>>terms, a understanding a court is free to disagree with.
>
> This makes the GPL similar - if not identical - to the LGPL ;-)
It IS similar. It is not identical, since under the LGPL you explicitly
have more rights to copy. Whether those rights would be found by a court
to be also there for GPL is of course part of the ambiguity of
derivative work.
>
>>But even without that, I have never understood the argument as to why the
>>GPL and CDDL are incompatible.
>
> The GPL applies to a whole work and the CDDL applies to single files.
No idea what this means. You can apply the GPL to whatever you want to
apply it to (assuming you own the copyright). This certainly does not
make them incompatible.
>
> You can mix code from different files under different licenses as long as
> one of the license is not the GPL. If you are however talking about a program
??? No idea again what this means. It does seem to be based on a certain
reading of "derivative work". If work C is made up of A and B and B is a
GPL work, is C a derivative work of B? I suspect it depends on how tight
the dependence of C is on B. But again, since there exists no real
definiton of what derivative work means, this question is unanswerable.
> ans a library, this are two different works that can be under different
> licenses even if one of them is the GPL. The latter is done in cdrtools for
> "mkisofs".
It depends on whether or not the result is a derivative work. If not,
then I agree. If so, then I guess the whole would be. But that would
make the whole a derivative work of the kernel as well. And since all
computers have bioses which are not GPL, it would mean that linux could
not be run on any computer.