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Re: Illustrating JVM bindings

Michael K. Edwards wrote:
> On Wed, 19 Jan 2005 21:10:57 -0800, Josh Triplett <josh.trip@verizon.net> wrote:
> [snip]
>>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.

Of course; I am certainly not arguing that the mechanical act of linking
them is where the derivative work is created.  It exists well before that.

> 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.

Note that combining a set of precedents, none of which individually make
your point, is quite sketchy and speculative unless you are a court of law.

> 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
> ).

Hardly a "slam-dunk", considering that Borland neither used code from
nor accessed any functionality from Lotus; that case discusses the
ability to copyright menu layouts, which has no real relevance to the
issue of libraries and derived works.

[snip quote]

> 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
> courts.

Again, "linking boundaries" are not the issue here; linking itself
doesn't create a derivative work (again ignoring issues of inlines,
macros, etc).  It's a far jump from that to arguing that the linking
boundary stops derivation.

A program need not include any code from the library to be considered a
derived work of that library.  Consider what would happen if I were to
take a novel and write a new story in the same setting, or with the same
characters, or even with a strong enough resemblance to those
characters.  I would not be including any amount of text from the
original novel, and yet the new story is quite clearly a derived work,
by both common sense and legal precedent.  (Yes, I'm aware that doesn't
provde the point that a program can be a derived work of a library; I'm
making the point that including parts of another work is *not* the only
way to be derived from that work.)

- Josh Triplett

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