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

On Thu, Sep 08, 2005 at 10:46:32AM -0700, Sean Kellogg wrote:
> 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,

<snip irrelevant distraction about technicalities of shared libraries>

It'd be nice if this fairly optimistic view of copyright as applied to
software would be upheld in the real world, because it would mean we
could stop worrying about derivative works and modify[0] anything we
liked; the only limitation would be on distribution (be even nicer if
we could scrap that too, which would mean copyright wouldn't exist and
the only requirement for being free software would be that you have
the source). But I'm not hopeful that it would be, particularly since
all the corporations and lawyers seem to think otherwise.

Also, this completely defeats the GPL, permitting proprietary software
to be based on it and making it functionally equivalent to the LGPL.

Of course, if this were upheld in court, everybody would just leap to
using contracts instead of licenses, and explicitly prohibiting
quasi-derivation-via-merging. Enough courts have already upheld that
you can substitute a contract for a copyright license and ignore all
the limitations of copyright law.

[0] I can trivially implement, in a matter of a few hours, a system
    which will let you modify any piece of software you have on a
    given platform in a manner that could only be described as
    'merging it with something else'. If your platform is perl or some
    similar ASCII-text script, the system is patch(1). With minimal
    extra effort I can ensure that this happens only at execution
    time, and that no copies are stored.

  .''`.  ** Debian GNU/Linux ** | Andrew Suffield
 : :' :  http://www.debian.org/ |
 `. `'                          |
   `-             -><-          |

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