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Re: Illustrating JVM bindings

On Wed, 19 Jan 2005 21:10:57 -0800, Josh Triplett <josh.trip@verizon.net> wrote:
> On the other hand, a program written againt a unique GPLed
> library, with no other implementation, is almost certainly a derivative
> work of that library: you are combining two expressive and copyrightable
> works into a new whole which is greater than either.

When combining the two is a mechanical operation, the combination is
not separately copyrightable, and hence is not a derivative work.  Nor
is the program a derivative work by itself if it uses a published
functional interface to the library.  That's the upshot of the case
law as I understand it, although you have to combine a number of
precedents to get there.  Here's one from the First Circuit that I
haven't cited previously, which is pretty much a slam-dunk:  Lotus v.
Borland 1995 ( http://www.law.cornell.edu/copyright/cases/49_F3d_807.htm

We also note that in most contexts, there is no need to "build" upon
other people's expression, for the ideas conveyed by that expression
can be conveyed by someone else without copying the first author's
expression.  In the context of methods of operation, however,
"building" requires the use of the precise method of operation already
employed; otherwise, "building" would require dismantling, too. 
Original developers are not the only people entitled to build on the
methods of operation they create; anyone can.  Thus, Borland may build
on the method of operation that Lotus designed and may use the Lotus
menu command hierarchy in doing so.

Not every circuit has the same kind of bright-line test, but you can
follow the precedents cited in Lexmark v. Static Control from
jurisdiction to jurisdiction and see that the few contrary decisions
are being repudiated right and left, just as the Lotus court declined
to follow the Tenth Circuit's decision in Autoskill v. NESS 1993. 
(The Tenth, which covers Oklahoma, Kansas, New Mexico, Colorado,
Wyoming, and Utah, doesn't appear to have had occasion to reconsider
the issue since.)

It appears to me that, after trying out "fair use" and "de minimis",
US appeals courts have settled on uncopyrightability on functionality
grounds as the appropriate theory in which to ground the conclusion
which they believe to be good public policy.  I do recognize that
there are a lot of other courts in the world, but the premise that the
GPL crosses linking boundaries was invented in the US, and threats of
legal action for GPL violation are usually made with reference to US

- Michael

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