Re: Linux and GPLv2
On Wed, Mar 23, 2005 at 10:56:49AM -0300, Humberto Massa wrote:
> Whoa, slow down, cowboy! Re-read what I have written up there: <<".h"
> _bits_ are not copyrightable>>. Now take a deep breath. The thing is: it
> is considered by USofA and other countries case law that the bits that
> are at compile/link time from a .h file (as you mentioned down here, as
> macros and inline functions) are not really being "included" in the
> work, but are in reality being "referenced" on it.
Even assuming that this "considered" has some legal basis, this "rule"
utterly misses the point. You have a decent heuristic there, but it's
just a heuristic -- it doesn't mean anything legally.
In the U.S., derivative works don't need to include a literal copy of
any of the original to be derivative works. All they need to do is
include more creative content than "fair use".
See circular 14 (http://www.copyright.gov/circs/circ14.pdf) for
more detail on what is and is not a derivative work. In particular,
note that it uses the phrase "based on" 11 times. See circular 21
(http://www.copyright.gov/circs/circ21.pdf) for more detail on fair use.
Outside the free software community, copyright infringment cases
frequently involve works with many superficial differences. Just because
we're usually dealing with relatively unambiguous questions doesn't mean
that's always the case for copyright law.
Which, perhaps, is one of the reasons proving "financial harm" is one
of the key issues in most copyright infringement cases. As another
heuristic, that's when use isn't fair use.
--
Raul
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