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Re: GPL, yet again. (The kernel is a lot like a shared library)

On Thursday 08 September 2005 10:22 am, Andrew Suffield wrote:
> On Wed, Sep 07, 2005 at 06:50:00PM -0400, Joe Smith wrote:
> > While I would like to belive that the FSF knew exactly what they were
> > doing, I am not certain.
> >
> > It is generally belived that the GPL 'derivative' clauses may actually be
> > upheld in the case of static libraries. The fact that linking the .o's of
> > the library directly with your program is equivelent to linking the
> > library with the object files of your program, seems to verify this.
> >
> > The question still debated is whether Shared libraries are like this
> > also.
> It's the wrong question. This is a FAQ here.
> Stop thinking about libraries. Libraries are not relevant. You're
> getting misled by technial details of how libraries are implemented,
> when in fact the whole issue is a red herring. Start thinking about
> source.
> The question you need to ask yourself is: Is this piece of software, in
> source form, a derivative of openssl?
> If it has been written to include and extend the behaviour of openssl
> by calling its functions - for example, the piece of software is an
> implementation of HTTPS, an SSL-derived protocol - then the source is
> probably a derivative of openssl.

Your definition of derivative is not based on the law, and I don't believe the 
question is whether it "extends the behavior."  That would be a definition 
based on use, which is not a copyright concept (outside of the termination 

Here is the US definition of a derivative:

A “derivative work” is a work based upon one or more preexisting works, such 
as a translation, musical arrangement, dramatization, fictionalization, 
motion picture version, sound recording, art reproduction, abridgment, 
condensation, or any other form in which a work may be recast, transformed, 
or adapted. A work consisting of editorial revisions, annotations, 
elaborations, or other modifications, which, as a whole, represent an 
original work of authorship, is a “derivative work”.
URL: http://www.copyright.gov/title17/92chap1.html#101

The language has certain ambiguities, in particular there is an open question 
as to whether a derivative work must be an original work of authorship.  
Sure, the second sentence seems to make that clear, but the first sentence 
doesn't seem to support it.  Suffice to say, the argument is the stuff of 
many law review articles.

But what is clear is that a derivative work requires an act of copying the 
original work of authorship.  The caselaw in question is Lee v. A.R.T. Co. 
(125 F.3d 580) where someone took a piece of art they purchased, fused it to 
an ashtray or something and then resold it.  The original artist said that 
was a derivative work and the sale was illegal.  The court found that it was 
not a derivative work because no copies were being made.  A legal copy was 
merged with something else and the first sale doctrine bared A.R.T. Co. from 
prohibiting resale of its original art.

So with shared libraries the question is not whether it extends functionality, 
but whether there is copying going on to create a new work (possibly of 
authorship).  Well sure, there is some sort of copying going on...  bits and 
pieces of the shared library must be compiled into the finished binary, but 
that brings us to another fun copyright question.  Are those bits and pieces, 
in of themselves, copyrightable?  Consider Sega Enterprises Ltd. v. Accolade 
Inc. (977 F.2d 151) where the court said that you couldn't protect header 
type materials via copyright and that Accolade was free to develop games for 
the Sony PS without having to pay Sony's licensing fees for using its fancy 
libraries.  It was based on the idea that the bits Accolade needed to copy 
where not eligible for copyright protection.

Seems to me those signs all point to the idea the the mere linking against a 
dynamically linked library does not constitute a copyrighted work.


Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Service & Activities Committee Interim Chair 
w: http://www.probonogeek.org

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 ...Jump in
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