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Re: What exactly is Derivative ?

On Thu, 25 Mar 1999, Marcus Brinkmann wrote:

> Hello,
> Let me first, Paul, thank you for your elaborations on this subject. I think
> it is very helpful, especially for people like me, who have little to none
> education in this area.
> Even so little things like the distinction between copyright law and
> contract law are easily overlooked in the "heat of discussion", if you are
> not used to them.
> Beside this, I would like a bit clarfification. To make it short, I will
> only focus on one point:
> On Thu, Mar 25, 1999 at 03:56:38AM -0800, Paul Nathan Puri wrote:
> > 
> > Courts enforce the copyright holders license.  Where the copyright holder
> > licenses under the GPL, and the condition is that a derivative must be
> > GPLed as well, the court can interpret according to a broad application of
> > the meaning of derivative or a narrow one.  It will depend on the authors
> > intentions and case law.  The case law is a vague mess; but if the authors
> > intentions are not made clear the court will enforce the lincense in favor
> > of the least responsible party under the circumstances.  Where the
> > derivative author evidences intention to steal or subvert, the court will
> > find in favor or the copyright holder.  But where the derivative author
> > appears the victim of vague terms, the court will not seek to punish.
> RMS is very actively pushing his intentions of the GPL. The GPL has a
> preambel, he is giving talks about this subject, answers questions privately
> and in public. It is hard to miss his opinions.
> He is also explaining what he thinks of derivative works, especially in
> conjunction with header files, libraries etc.
> My question is: Does this make any difference? You don't say exactly, but in
> your pro-GPL argument you speak about the social movement behind the GPL.
> This seems to be similar, although not identically. Could I, as a copyright
> holder, refer to RMS in this regard? Could the FSF (as copyright holder)
> refer to its public relations on this topic?

I don't think the GPL's legal protections are very strong.  My arguments
tend to voice this opinion.  It is stronger if the courts were to use
industry customs to interpret the meaning.  However, whether the courts
will do this is a matter of conjecture.  The courts will generally rely
solely on the arguments that the lawyers make in their pleadings.If the
lawyer does not make the argument, then who knows.

I would make that argument, but that's just me.  RMS made a big mistake by
not defining all the legal terms.  One huge risk is that 'derivative' and
'copyright' will be divergently interpreted in various countries.  Many
countries adhere to WIPO, but not all do.  The U.S. just recently brought
its copyright laws in line with WIPO.

The strongest case for the GPL is the extent to which it is uniformly
adhered to by the community which uses it.  This is relatively strong.
But a license must be viewed with an eye to litigation.  What will a judge
do with it?  I must say that this is an unpredictable question.
> > I think it is advisable for authors to add some lines to the GPL that
> > pertains to his or her specific work.  Define the scope of derivative,
> > make some terms more explicit.  Seek peer review of the license to be sure
> > it complies with the spirit of the GPL.
> This could also go wrong, in cases were people are not "legally trained". I
> would not feel up to the tasks to define the terms in this way. Maybe this
> is a useful addition for GPL 3.0 (if you are interested in this, AFAIK RMS
> is always looking for ideas and critique. It would be pretty hard to
> convince him that the GPL has flaws [[ because he needs to protect it ]],
> but maybe he will at some time release GPL 3.1 or 2.1 or whatever.)
> > Now you see how this license can be skewed to appear good and bad.  It
> > looks worse under copyright law.  It looks better under contract law where
> > the meanings of the terms are defined by industry standards.
> I think I understand. I think the social protection of the GPL is much
> stronger then the legalese in any way.

This might be so.  RMS should not have incorporated 'legalese' into the
GPL.  Since he did so, any court that has to interpret the legalese, will
do so first according to legal traditions.  The lawyer will have to make a
strong showing of custom.  I just think that this is shaky legal footing.

> > I will do some research (I'm writing my IP paper on this subject) on how
> > courts enforce software licenses of work upon which a derivative is made.
> > I will post my results...
> Great!
> Again, thank you very much,
> Marcus
> -- 
> `Rhubarb is no Egyptian god.' Debian http://www.debian.org   finger brinkmd@ 
> Marcus Brinkmann              GNU    http://www.gnu.org     master.debian.org
> Marcus.Brinkmann@ruhr-uni-bochum.de                        for public  PGP Key
> http://homepage.ruhr-uni-bochum.de/Marcus.Brinkmann/       PGP Key ID 36E7CD09

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