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Re: GPL and linking (was: Urgently need GPL compatible libsnmp5-dev replacement :-()

Oh Lord.  Deep breath.  Please, please, please read to the end of this
one before responding to each line on the fly.

The GPL contains one, and only one, _definition_ of the phrase "work
based on the Program".  (The word Program, capitalized, is defined
previously.)  That _definition_, in its entirety, is:

a "work based on the Program" means either the Program or any
derivative work under copyright law

This definition emphasizes that "derivative work", which is in any
case a phrase with a defined legal meaning, is to have its meaning
under copyright law in the applicable jurisdiction and _no_other_. 
Each and every time the phrase "work[s] based on the Program" appears
in the text of the GPL, it means this and only this.

The GPL contains, in the same sentence, a pair of noun clauses, placed
in apposition, with unambiguous syntactical markers (a colon and the
adverbial phrase "that is to say") indicating that the second noun
clause is an attempt to paraphrase the first.  This pair of noun
clauses overlaps textually with the above definition, but does not
change the definition in any way.  Here it is:

either the Program or any derivative work under copyright law:
     that is to say,
a work containing the Program or a portion of it, either verbatim or
with modifications and/or translated into another language

In context, this represents an attempt to restate the meaning that has
been assigned to "work based on the Program" without use of the formal
legal term "derivative work".  I say "attempt", because it is wrong. 
W-R-O-N-G, wrong.  In any country signatory to the Berne Convention,
and a fortiori under US statute and case law.

There are (at least) three independent bases on which I believe a
court of competent jurisdiction must discard the latter and stick to
the former.

1.  Grammar and everyday logic, especially in a document stated as
formally (if unconventionally) as the GPL.  The former is the object
of the verb "means", while the latter is a paraphrase, clearly set off
typographically and grammatically.

2.  The legal principle, at least under common law, that a contract is
to be construed against the offeror in the presence of a reasonable
dispute over a textual ambiguity and in the absence of a strong
indication by word or deed that the acceptor agreed to the offeror's
construction at the time of acceptance.

3.  The reductio ad absurdum that results from accepting the latter
definition, by which any copyrightable work containing any fragment in
excess of de minimis taken from any GPL work may only be distributed
under the GPL.  This would include, for instance, an entire Debian CD
set plus a shelf of books bundled with it, if the combination is
offered for retail sale as a single product and the selection
criterion for the Debian packages and the set of books is remotely
non-trivial.  This is obviously not a construction that you, or I, or
anyone has accepted or would accept; nor is it remotely sensible
public policy to permit such a construction.


- Michael

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