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WordPress, themes, and derivative works

WordPress, themes, and derivative works

Posted Jul 31, 2010 23:01 UTC (Sat) by marcH (subscriber, #57642)
In reply to: WordPress, themes, and derivative works by butlerm
Parent article: WordPress, themes, and derivative works

> You can, and get laughed out of court, unfortunately.

You meant: unfortunately *for the GPL*?

You are quite convincing about the theory. But in practice Justice is not as deterministic as a computers:
- judges are unreliable human beings with limited technical knowledge
- not everyone is rich and patient enough to actually go all the way to court
- US laws do not apply to the whole world
- etc.
For a (depressing) reality check look no further than software patents.

Even if you prove that the GPL has a poor legal basis, it is well-known that it is scaring many companies. So it would still serve its purpose anyway. Just like a number of other legal abuses (you do not fight guns with flowers)

> If you are making a binary distribution, it makes a _big_ difference whether protected elements of the include files are substantially included in the resulting binaries, or just referred to during the compilation process.

Whether this is the "right thing" or not, it sounds simple and consistent enough. Do you have examples of the former case?

> The Supreme Court set the basic precedent in this matter more than 110 years ago.

And whether 110-years old decisions all make sense for software is an interesting question.


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WordPress, themes, and derivative works

Posted Aug 1, 2010 0:39 UTC (Sun) by dlang (subscriber, #313) [Link]

he's not saying that the GPL has a poor legal basis, just that the FSF definition of a derivitive work hoes beyond where it has a good legal basis.

all the GPL enforcement court cases that I am aware of has involved clear copying of the work without including the source.

I am not aware of any GPL enforcement court actions where a library was under the GPL, proper source for that library was provided, and the enforcement action was that because the library was linked to another program, that other program had to be released under the GPL.

I know this is stated frequently as a requirement, and I fully believe that the threats around this may have forced some companies to GPL their software, but just because threats have worked doesn't mean it has a solid legal basis.

Yes, this does mean that I question if there is really an effective legal difference between the GPL and the LGPL.

the idea that software A could be considered derived from library B one day (because it only works with library B), and then the next day someone releases library C with the same interface as library B changing the status of Software A to no longer be considered a derivative work of library B (because it now works with both library B and library C) seems like nonsense to me. The status of software A as a derivative of some other piece of software needs to be based on what the developers A did while they were developing the software, not anything that anyone else does.

arguing that dynamic linking is Ok, but static linking makes something a derived work smacks of the same silliness as people claiming that because a computer copies a binary from the hard drive to ram (or from the ram to the CPU cache/registers) to execute it, copyright law now allows them to control the use of the software.

I also don't think that loosing these edge cases of derived would necessarily be a big deal for the community. I think more damage would be done by people no longer trusting the claims than by the loss of the license coverage.

WordPress, themes, and derivative works

Posted Aug 1, 2010 6:32 UTC (Sun) by butlerm (guest, #13312) [Link]

"arguing that dynamic linking is Ok, but static linking makes something a derived work smacks of [...] silliness"

There is probably a pretty good argument that both static and dynamic linking create derivative works, either on disk or in memory. The difference is in part to avoid the silliness you describe with regard to copying software in memory, Congress has explicitly exempted the creation of adaptations and copies by end users that are necessary for them to use software on a machine, provided they do not transfer the adaptations to others, of course. See 17 USC 117.

The thing that irritates me the most about the specious idea that a plugin etc is a derivative work merely based on considerations such as utility and compatibility is if that were to become the case, the outcome would be _far_ worse than what little advantage it might gain in some circumstances.

Every Win32 program could require permission from Microsoft to be distributed for example. Or every program that reads files saved in a proprietary format, or supports proprietary network protocol extensions, and so on.

WordPress, themes, and derivative works

Posted Aug 1, 2010 11:51 UTC (Sun) by marcH (subscriber, #57642) [Link]

> he's not saying that the GPL has a poor legal basis, just that the FSF definition of a derivitive work hoes beyond where it has a good legal basis.

Yes, sorry. In this context I was abusively using "GPL" instead of: "the GPL difference compared to the LGPL".

> the idea that software A could be considered derived from library B one day (because it only works with library B), and then the next day someone releases library C with the same interface as library B changing the status of Software A to no longer be considered a derivative work of library B (because it now works with both library B and library C) seems like nonsense to me.

Yes it would be nonsense.

What makes perfect sense however (whether it is legally correct or not) is that the status of software A in your example does not actually change. Because everything in your example is derived from library B, including library C since it is cloning B. I am not saying this is legally correct (I am not a lawyer). But it is simple, logical, consistent and makes sense.

(Note: this originated in http://lwn.net/Articles/394889/)

WordPress, themes, and derivative works

Posted Aug 1, 2010 21:22 UTC (Sun) by dlang (subscriber, #313) [Link]

it would make sense that the status of software A didn't change, but people are claiming that software A must be a derivitive of library B due to the fact that there is no other library that it works with, if there was another library then it may not be a derivitive of software B.

this is what isn't logical, and as others point out, is a very dangerous precedence to set.

it would make all free software that was written for windows derived from windows (because that's the only OS it was written for), it would make linux derived from Intel's 386 chip (because that's what it was designed to run on), it would give apple exactly the control that they want over all software written for the iphone, etc

such results would be nonsense, but the same logic that you are claiming for the situation where there is no code copied from a library into an applications source code would lead to these conclusions as well.

I may have missed something, but I haven't seen any court cases that implied or stated that this is valid logic to follow, and there are court cases (like the recent 'jailbreaking a phone is ok' case) that point the other way.

as i said before, besides being a dangerous precedence to set, I don't think it's needed, in part because I haven't see anyone try to use it (in anything other than public threats)

WordPress, themes, and derivative works

Posted Aug 2, 2010 23:37 UTC (Mon) by marcH (subscriber, #57642) [Link]

> but people are claiming that software A must be a derivitive of library B due to the fact that there is no other library that it works with, if there was another library then it may not be a derivitive of software B.

"Is there an alternative implementation?" is indeed not a rigorous way to express this "test". The real question is: "Is the API of library B an original, copyrighted creation of B?" (assuming that a copyright on just an API can be legal - but please let's not start over).

> this is what isn't logical, and as others point out, is a very dangerous precedence to set.

"Logical", "legal" and "dangerous" are different things. Please avoid mixing them in the very same sentence, otherwise it looks like your reasoning is not sheer but tainted by your agenda.

> it would make all free software that was written for windows derived from windows

Yes. But since Microsoft licenses are absolutely not using the concept of "derived work" like the GPL does, this would be a very different story. (about this difference see other posts above)

> (because that's the only OS it was written for)

Not really, but rather because: win32 and other MS APIs are original, copyrighted creations of Microsoft.

WordPress, themes, and derivative works

Posted Aug 3, 2010 1:25 UTC (Tue) by dlang (subscriber, #313) [Link]

if using the API makes it a derivative work, then glibc is a derivative work of libc because they both implement the same API

all iphone apps are derivative works of the iphone OS as it created the API (This is something that Apple would love to have be the case, that way they could use copyright and the DMCA to ban anything from running on the iphone without their approval)

what's even worse is trying to say that using the API in one way (static linking) makes a derivative work, but in another way (dynamic linking) does not. Given that there is no difference in the creative work involved (writing the new program), only in the mechanical step of creating the binary.

The example of apple above is why I say that winning the definition war would be dangerous. It could get even worse than that example. Microsoft has now licensed the ARM core, so they may an ARM device that has a custom chip (in the ARM world you have the core and a bunch of things that can be combined together and manufactured as one chip), and then set the license for the chip API to exclude GPL code. They could even do it in an 'accidental' fashion like the Sun CDDL does.

some free software advocates are so eager to get legal tools in their hands to beat on proprietary software vendors that they don't stop to think how those same tools could be used against free software.

WordPress, themes, and derivative works

Posted Aug 5, 2010 10:07 UTC (Thu) by rqosa (subscriber, #24136) [Link]

> what's even worse is trying to say that using the API in one way (static linking) makes a derivative work, but in another way (dynamic linking) does not. Given that there is no difference in the creative work involved (writing the new program), only in the mechanical step of creating the binary.

But there is a difference: the statically-linked binary includes (parts of) the library. If you distribute the binary, you're also distributing (parts of) the library. It's less clear whether the dynamically-linked binary contains any parts of the library; if there are things like inline functions or template functions in the .h files, it probably does, but otherwise…

(However, PHP code is distributed in source form, and it seems pretty clear that source code that merely contains a call to "require_once()" isn't necessarily a derived work.)

WordPress, themes, and derivative works

Posted Aug 6, 2010 8:42 UTC (Fri) by dlang (subscriber, #313) [Link]

in all cases you may be distributing the library, so it's not a matter of if you are distributing it, but rather if your program becomes a derivative work if you use one method of linking, but not if you use a different one.

since linking is not a creative task, I don't see how it could create anything that's protectable by copyright.

WordPress, themes, and derivative works

Posted Aug 1, 2010 6:16 UTC (Sun) by butlerm (guest, #13312) [Link]

"You meant: unfortunately *for the GPL*?"

No, I mean unfortunately for the persons who find themselves in the situation of making an argument before a court that (1) runs contrary to dozens of precedents, (2) against the whole tenor of copyright law for at least a century, and (3) without at least a theory of why the law requires such a conclusion.

The GPL is just fine. The only issue is about where and when the difference between the GPL and the LGPL can actually be enforced. If there is joint distribution of both the GPL component and the proprietary component, the developers of the former have significant leverage that they do not have if there is not, because the distributors must comply with the license to have the legal right to distribute the GPL component. No specious theories about derivative works required.

"Do you have examples of the former case?"

No. But as far as I know there is no legal dispute about the proposition that including substantive creative material from another source into a resulting product, whether literally or by translation, and without technical necessity creates a legally restricted derivative work. C++ templates and inline functions are usually raised as an example, although to some degree the use of both might be allowed on the grounds of technical necessity, i.e. to the degree necessary to make a compatible interface. cf. Baystate v. Bentley Systems (1996).

"And whether 110-years old decisions all make sense for software is an interesting question."

That is an issue Congress would have to address. The situation with software patents is similar. The latter are probably a counterproductive drag on the economy and the progress of science and the useful arts, but courts aren't generally in the business of making such determinations. That is what legislatures are for.


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