How not to handle a licensing violation
Posted Apr 12, 2007 17:21 UTC (Thu) by ajross
In reply to: How not to handle a licensing violation
Parent article: How not to handle a licensing violation
You might wish to read some caselaw on the meaning of
"derivative work" as applied by the courts to
I think you might be overstepping here. At best, "derived work" in
software is a nebulous concept. Wikipedia comes up with the following
two links (by Larry Rosen and Dan Ravicher -- real lawyers, even!)
which are considerably more circumspect in their pronouncements:
Certainly to me, a very clear common sense argument can be made
that "piecewise replacement" is the software equivalent of, say, art
forgery. The resulting work represents the efforts of its author, but
is so tainted by the design of the original that it can't be viewed as
a separate work.
At the same time, one could reasonably argue that only the final
work generated from such a replacement regime should be judged on its
own as a single entity -- that the "derived" property is of the work
as it is, and not a function of its history. If it can be shown to be
clearly distinct and different, then it should be legal. This is the
theory supported by the AT&T/Berkeley lawsuit, for example
(although it should be pointed out that this was a settlement, not a
judgement, and one driven largely by Novell's lack of interest in
pursuing the case for a comparatively minor product, not necessarily
by weakness of the case itself).
The difference on both ends of the spectrum seem to be ones of
degree; there is no "bright line" test here. So as a practical
matter, I'd strongly argue that the kind of "copy and replace"
development methodology used by OpenBSD here is inherently risky, and
a generally bad idea. Its legality isn't nearly as obvious to me as
it seems to be to you.
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