Re: GPL and economics

On Thu, 20 Jun 2002, Roger Fujii wrote:

> "Deven T. Corzine" wrote:
> > On Tue, 18 Jun 2002, Roger Fujii wrote:
> 
> > > I think you misunderstand the point of the argument.  It is the vast
> > > "derivative" claim that is bad.  Let's say I develop a portable C app
> > > under solaris.  I take it to a linux box and link it to a GPLed C lib (as
> > > an example).  Why should a GPL claim be made against this app - can you
> > > honestly say that requiring my source in this case to be licensed to GPL
> > > fair?
> > 
> > I don't think that would be fair.  Moreover, I seriously doubt it would
> > constitute a "derived work" of the GPL code
> 
> It *IS* according to the FSF.

They can claim it, but that doesn't make it so.  A court would decide, and 
I rather doubt they'd side with the FSF in that interpretation...

> > unless you statically link the GPL'd code
> 
> GPL makes *no* distinction whether it is statically linked or not.  The 
> only "exception" is you can link with things that are normally part of 
> the OS/environment (whatever that means).  

It's not about distinctions the FSF or GPL make.  It's about the question 
of whether (legally speaking), the work is a "derived work" under copyright 
law or not.  A binary that's statically linked is clearly derived from all 
the component pieces that were linked together.  Dynamic linking is a grey 
area, and may or may not legally constitute a derived work.  (The FSF wants 
it to be, but copyright law experts might not agree with them!)

> > into a binary you distribute.  After all, there's a very strong
> > argument to be made that the source code of the application is SOLELY
> > derivative of the Solaris system, and not one bit derived from the 
> > GPL'd code, which would give the GPL no leverage under copyright to 
> > make a claim.
> 
> FSF does, nevertheless.

Yes, I realize they make some claims which may be unsupportable.  However, 
ultimately a court would decide, not the FSF.  Of course, that would mean 
taking the case to court, and the FSF will probably try to avoid that for 
their more aggressive claims of what constitutes a derived work...

> > However, if you take that source and link it with a GPL library to make 
> > a binary, that binary itself is clearly a derived work of your source 
> > AND the GPL code, even if your source itself is immune from claims of 
> > derivation.
> 
> Not if it is dynamically linked.  Even then, FSF claims there is 
> derivation.
>   http://www.gnu.org/licenses/gpl-faq.html#LinkingWithGPL

Again, regardless of what the FSF may claim, this is a matter of law and 
something that would be decided in a court.  If one develops code without 
reference to GPL code, it cannot be said to derived from GPL code, can it?  
If that code is later combined with GPL code, without modifying the code, 
the FSF may try to claim that your code is retroactively derived from GPL 
code, but that seems like a very flimsy claim to me, and I seriously doubt 
it could stand up in court.  (But I'm no lawyer, so I can't say for sure!)

> I think we both agree on what reasonable derivative claims are.  
> Unfortunately, the FSF claims way more than that.

Agreed.  They really shouldn't do that, as it damages their credibility, 
but they're aggressive in nature (just like Microsoft) and will apply the 
interpretation of the law that best suits them, whether or not reality may 
later intrude on their delusions. :-)

Deven