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Re: Combining proprietary code and GPL for in-house use

This is not legal advice. No lawyer-client relationship is established. etc.

----- Original Message -----
From: "Thomas Bushnell, BSG" <tb@becket.net>
To: "Edmund GRIMLEY EVANS" <edmundo@rano.org>
Cc: <debian-legal@lists.debian.org>
Sent: Wednesday, June 27, 2001 7:34 PM
Subject: Re: Combining proprietary code and GPL for in-house use

> Edmund GRIMLEY EVANS <edmundo@rano.org> writes:
> > Thomas Bushnell, BSG <tb@becket.net>:
> >
> > > Linking is not necessarily copyright violation, but if combined with
> > > certain other acts, the whole thing, including all its parts, are an
> > > instance of illegal copying.  The total combination would indeed have
> > > to be an act of copying, but it's quite irrelevant whether each and
> > > every piece is.
> >
> > Unless you come up with a relevant example, this is going to look more
> > like tedious niggling than a useful contribution to any discussion.
> We have a case here of a work composed of two parts:
> A) a gpl'd library
> B) a main program with a gpl-incompatible license
> The combined act of distributing A and B, with the intention to
> combine them into A+B is the combined case.
> Distributing A alone is not illegal.  Distributing B alone is not
> illegal.
> Distributing A+B is illegal.  And it's illegal no matter how many
> people divide up the work, as long as what they are doing is intending
> to distribute A+B.  You have to look at the *total situation* and not
> just ask "is linking a copyright violation"?
> The case we were talking about *is* a relevant example.

I have trouble seeing how the separate distribution of A and B and then the
end-user combining them is infringement by either the distributor or the
end-user. Assuming that neither A nor B includes code from each other, then
A is not a derivative work of B nor is B a derivative work of A and so they
are not derivative works distributed under the GPL which would trigger the
incompatibility issue for the distributor. The end-user has broad licenses
under the GPL ("2. You may modify your copy or copies of the Program or any
portion of it, thus forming a work based on the Program") and likely also
under the GPL-incompatible license to make a derivative work so the end-user
does not infringe because he/she has permission. So, no direct infringement
possible by the distributor (because there is no derivative work created),
no contributory/vicarious infringement by the distributor (because you need
direct infringement to trigger those kinds of liability), and no
infringement by the end-user (because he/she is licensed).

I agree it "looks" rotten but .....

Just some thoughts.

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