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Re: What exactly is Derivative ?

Certified Law Student
& Debian GNU/Linux Monk
McGeorge School of Law

On 26 Mar 1999, Henning Makholm wrote:

> Paul Nathan Puri <publisher@ompages.com> writes:
> > 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.
> That is probably intentional. RMS seems to want "deriviative" to be
> interpreted in as wide a sense as possible, so that as many other
> programs as possible will be forced to be GPLed.
> Offering a definition of "deriviative" would only serve to narrow the
> definition in comparison with what the court would decide without a
> definition: I don't think a license on a program can validly claim to
> influence other programs that the judge would not, without
> consideration to the license, deem covered by the original author's
> copyright.
> I might be misreading you, but it seems you're saying that I could
> write a program and distribute it with a notice saying:
>    This program, or any of its deriviatives, may only me copied
>    if you pay me $100 per copy.
>    For the purposes of this note, a "deriviative" means any program
>    whose source code include the use of the word "foo".

Not that extreme.  You could change the use of the word derivative to be
narrower than the copyright definition.  I don't think a wider usage would
be protected because the usage now is a wide as wide can be and still
remain reasonable.  This applies to copyright.

You can include any terms you want in an offer to license.  That does not
mean people will accept.
> It's relatively clear to me that if I sued someone who dared to write
> foo in his program, I would be told by the judge that I cannot make
> other people's program deriviatives (in the copyright law's sense)
> of mine simply by claiming so.
> There must be some kind of intrinsic legal limit on which kind of
> connections between programs that give the author of program A right
> to set conditions on the distribution of program B.

In copyright law this is the case.  In a contract sense, the court will
enforce any agreement.  An agreement must be proved.

According to my previously made points, it is fairly clear to me that the
court will not enforce a use license without proof of agreement.  The
court expanded the need for this requirement recently in the shrink wrap
and click through license cases.  The court's now enforce these, and they
also represent the border of the court's allowance of this kind of
agreement.  I don't think court's will enforce a license that is merely
posted.  There must be a mechanism that verifies that an agreement was
> As I see the discission, we're trying to figure out where that limit
> is in connection with header inclusions.

Ok this is a more concrete query.  Along the lines with my previously made
points, it may be useful to analyze this according to the caselaw and
statutes to formulate a statement when this may or may not be the case.
> -- 
> Henning Makholm
> -- 
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