WordPress, themes, and derivative works [LWN.net]

WordPress, themes, and derivative works

Posted Jul 29, 2010 21:07 UTC (Thu) by sfeam (subscriber, #2841)
In reply to: WordPress, themes, and derivative works by tzafrir
Parent article: WordPress, themes, and derivative works

Now someone gets a copy of my a.php and your b.php and runs a.php . In order to execute it, his system copies a.php into memory (this is a copy of my a.php) and then processes it to include b.php inside. That processed copy is derived from both a.php and b.php .

Maybe so, maybe no. The fact that both modules are loaded does not, by itself, make a.php a derived work of b.php. As to whether there now exists some third, separate work that is derived from both a and b, I'd say this is far from clear. Just having two executables running on your computer at the same time does not create a derived work, or so I would claim with some confidence. Is having two sets of php modules available at the same time a different case? I am dubious.

This is not to deny the possibility that a.php might indeed be a derived work for other reasons. But making use of other capabilities that may or may not be present on the system, be they other php modules or separately installed programs, is not a sufficient test for being derivative.

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WordPress, themes, and derivative works

Posted Jul 29, 2010 22:05 UTC (Thu) by tzafrir (subscriber, #11501) [Link]

I didn't say it does. However, it's impossible to make any practical use of b.php without creating a work that is derived from both a.php and b.php .

The problem is that the combination of the licenses that cover a.php and b.php don't allow this derived work under either of them. This is very much not the case of two separate executables.

WordPress, themes, and derivative works

Posted Jul 29, 2010 22:36 UTC (Thu) by butlerm (subscriber, #13312) [Link]

"However, it's impossible to make any practical use of b.php without creating a work that is derived from both a.php and b.php."

The dubiousness of that proposition aside, any such combination by an end user would be explicitly legal under 17 USC 117(a). That includes _static_ linking if necessary.

"The problem is that the combination of the licenses that cover a.php and b.php don't allow this derived work under either of them."

It doesn't matter whether the licenses allow it or not. No one needs any kind of license to use something they have obtained a legitimate copy of. The only obvious way to defeat the fair use rights Congress clearly intended end users to have would be to have those who receive copies of open source software enter into valid contracts specifying otherwise.

WordPress, themes, and derivative works

Posted Jul 29, 2010 23:14 UTC (Thu) by sfeam (subscriber, #2841) [Link]

it's impossible to make any practical use of b.php without creating a work that is derived from both a.php and b.php

Similarly it is impossible to make practical use of a shared library without creating an executable that calls into it. But in neither case does this by itself create a derived work. I know that the FSF implies otherwise in justifying the existence of the LGPL, but that doesn't make them correct.

WordPress, themes, and derivative works

Posted Jul 29, 2010 23:56 UTC (Thu) by tzafrir (subscriber, #11501) [Link]

That's a typo here. I meant: "it's impossible to make any practical use of *a*.php without creating a work that is derived from both a.php and b.php".