Beyond Thesis: Does the GPL go to far? What constitutes a derivative work? | Hacker News Reader

Beyond Thesis: Does the GPL go to far? What constitutes a derivative work?

drewblas.com

12 pointsluminousbit21 comments

For f*ck sake, no. It doesn't go far enough.

Don't like the GPL? Don't use it; it's just that you then fall back on standard interpretations of "derivative work", which -- you'll find, are at least as restrictive.

8 notes are enough to constitute derivative work for music, as are 4 paragraphs. I'm not aware of specifics for code, but I believe they'll be even less comfortable for you than any gpl interpretation.

> I'm not aware of specifics for code

Two lines of Perl, two for Python, 10 keystrokes for Lisp and a region of 1000 pixels of Smalltalk, given standard fonts as shown on a class browser. About a hundred lines for Java or C# ;-)

It helps to read the article before getting indignant. And then maybe skipping the indignant part. The author is talking about cases where no part of the original at all is included in the new (and, he argues, not actually derivative) work.

I'm not a lawyer, but...

I think this article misses the point, and I think it goes wrong right about here:

The GPL is a license. It deals with copyright law. It defines who is allowed to copy & distribute the software (everyone).

The GPL "deals with" copyright law, but that does not mean that all of its force relies upon copyright law, nor does it mean that the definition of "derivative work" in copyright law has any bearing on the problem at hand.

The GPL is a license, granting users the right to use the software. So, we can use WordPress, because the author allows us to (by means of the GPL).

The GPL puts restrictions on our use. Among these, that if we wish to produce any derivative works (under the GPL's definition of "derivative"), we must also release these under the GPL. As far as I can tell, copyright law has nothing to do with this restriction.

> The GPL "deals with" copyright law, but that does not mean that all of its force relies upon copyright law

Actually, it does. The GPL is a copyright license, which means its only restrictions derive from copyright law. It can't prevent activities otherwise allowed by copyright.

> The GPL is a license, granting users the right to use the software. So, we can use WordPress, because the author allows us to (by means of the GPL).

The GPLv2 (the version in discussion here) explicitly denies that it covers running software:

  Activities other than copying, distribution and modification
  are not covered by this License; they are outside
  its scope. The act of running the Program is not
  restricted

> The GPL puts restrictions on our use. Among these, that if we wish to produce any derivative works (under the GPL's definition of "derivative"), we must also release these under the GPL.

There is no such restriction. You are legally allowed to produce derivative works, without releasing the source to anybody. The catch is to do so, you must not distribute the derived work in a way which requires copyright permission. Once you distribute a derived work, copyright (and thus the GPL) applies.

Thanks for setting me straight on all points.

This means, I then assume, that the usage of WordPress (for example) is regulated solely via the "Terms and Conditions" for WordPress, and the GPL is not a factor?

If that's the case, couldn't WordPress simply add a line to their "Terms and Conditions" stating that all access to WordPress functions via Themes are limited to those themes released under the GPL?

They could, but it wouldn't do any good. Theme authors who aren't running their site on Wordpress won't be covered by the Wordpress ToC, and I don't think WP would sue users who install a non-GPL theme.

"I" would say "no". If WP has public api calls and that is all a theme uses, then WP cannot force GPL upon it. The theme is NOT a derivative in that case in any rational sense of the word. Regardless of what WP thinks.

If you incorporate GPL'd code into your theme then I believe you abide by the license. Regardless of what the author of the theme thinks.

By "public api calls", do you mean public as in public domain or as in under the GPL?

If they're in the public domain, sure. If they're GPLed, then follow the license as written.

APIs can't be copyrighted, at least in the US -- this is why projects like Wine are legal. Software which calls a GPL'd library's API is not considered a derivative work of the library. Otherwise, releasing X11/BSD/etc code which calls GPL libraries wouldn't be legal.

I mean public as in an api that other code can call. Hmmmm, I see that now but that still does not make my code a derivative according to the legal definition. As a theme author I am not taking the GPL'd code and doing anything with it. I am not copying it. I am not modifying it. I am using an api that you created to hook into and that is all. I don't think a court is going to see that simple hook as "derivative".

Consider an arbitrary piece of code that you wish to do something with, such as copy it, run it, modify and distribute changes, make add-ons for it, etc.

If there is no copyright on the code, and it is not covered by patents, you can do all those things without having to get anyone's permission.

I'm going to ignore patents for the rest of this comment. Most code is copyrighted. For copyrighted code, the law says that the copyright owner has certain exclusive rights. The ones usually relevant to software are to make copies, to distribute copies, and to make and distribute derivative works.

If you are not the copyright owner, you can't do these things legally unless you have the owner's permission.

The WordPress copyright owners have given permission to anyone who follows the GPL to do some of those things that copyright law says require their permission. If you haven't otherwise arranged to have permission from them, then the only thing that gives you permission is their blanket grant of permission to everyone who follows the GPL, and so the GPL is indeed an important factor in what you can do with WordPress.

If they added something to their T&C that said themes must be GPL, and you wished to write a theme and in writing that theme you were going to do things that required WordPress's permission under copyright law, then yes, your theme would have to be GPL.

The issue, though, is whether writing WordPress themes necessarily involves doing things that require permission under copyright law. If themes necessarily are derivative works or copy from WordPress, then the WordPress license (GPL) and any other terms and conditions must be obeyed.

If a theme does not copy code from WordPress and is not a derivative work of WordPress, then the theme author doesn't need permission, and so the license WordPress uses (GPL) and any other terms and conditions they have are irrelevant to that theme.

That is why the definition of "derivative work" under copyright law is so central to this issue.

> Among these, that if we wish to produce any derivative works (under the GPL's definition of "derivative"), we must also release these under the GPL.

This is not quite correct, in my opinion.

You can't write a license that requires someone to release 'all' his work under the GPL, for example. (It may be different if it's a contract.)

That's just what the FSF wants you to think. Of course, it usually doesn't pay to go through the legal hassel to defend yourself from unjustified claims by the FSF -- thus it's an effective chilling strategy.

For more information, see http://www.law.washington.edu/lta/swp/Law/derivative.html

> defend yourself from unjustified claims by the FSF

Has something like this ever happened?

You mean in court?

Of course, not! That's the point of a chilling strategy, you know?

So, nothing happens and, therefore, it's part of a chilling strategy? I am not sure if I can follow.

It's a chilling strategy because the costs of not using a GPL software is always less than a legal fight.

Also, you do have rather established legal definitions of 'collective' and 'derivative works'. See, for example, Laurence Rosen: "Open Source Licensing". Then, why does the GPL3 not use them? Instead, is uses 'work based on' IIRC. So, why's that?

In my opinion, the resulting (legal) uncertainty is intentional.

Another reason: If the interpretation of the FSF is true, all works that ever linked dynamically against a Microsoft library would be derivative works of said library. Does it makes sense that companies like Adobe try to build a business on such shaky legal grounds?

So, the FSF is out to obstruct the use of GPL software. Who would have imagined that?

Yeah, totally unbelievable, isn't it?

For they give away their stuff with no strings attached! Oh, wait...

Not only it comes with no strings attached (as being Free Software requires), the GPL ensures nobody will ever be able to attach any strings to it.

The only thing you can't do with code derived from GPL'ed code is attaching strings to it. Your clients should celebrate it.

If it embeds, in itself, no Wordpress code (not even the examples) and is distributed without any part of WP, I can't see why a WP theme should be considered a derivative work. You could call the WP environment the theme runs in forms a DSL on top of PHP and that a WP theme is no more a derived work of WP than WP is derived from PHP.

If, however, it is based on an example template or shares non-trivial code with it, then it's derivative work and should be under the GPL.

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