Raul Miller wrote:
Yes and no. Every legal issue is judged (by an attorney, before be definitively judged by a Judge of Law) with basis on heuristics. In Brasil, the most important heuristic is the letter of law and its possible hermeneutics (case law has a very small weight here, compared to the USofA, for instance). In the USofA, the most important heuristic is the former intepretation given to some law (case law).Even assuming that this "considered" has some legal basis, this "rule" utterly misses the point. You have a decent heuristic there, but it's just a heuristic -- it doesn't mean anything legally.
But it is well-established in the US that using/replicating/implementing APIs and ABIs are "fair use". And that is the point I am discussing here.In the U.S., derivative works don't need to include a literal copy of any of the original to be derivative works. All they need to do is include more creative content than "fair use".
Again, using an API to make a program is not making a program "based on" another work -- and this, too, is well established in USofAn case law.See circular 14 (http://www.copyright.gov/circs/circ14.pdf) for more detail on what is and is not a derivative work. In particular, note that it uses the phrase "based on" 11 times. See circular 21 (http://www.copyright.gov/circs/circ21.pdf) for more detail on fair use.
Outside the free software community, copyright infringment cases frequently involve works with many superficial differences. Just because we're usually dealing with relatively unambiguous questions doesn't mean that's always the case for copyright law. Which, perhaps, is one of the reasons proving "financial harm" is one of the key issues in most copyright infringement cases. As another heuristic, that's when use isn't fair use.
Agreed.