GPL and derivative works

[Doug Hudson]

Bruce Perens noted
>We can no longer constrain people from creating derived works of
>_software_ solely within the domain of copyright law as it is presently
>written.

Even if copyright law is as-of-yet undeveloped, why not discuss revision of
Section 0 of the GNU Public License? The "derivative" section of the GPL
says (at least the version I have):
--
  The "Program", below, refers to any such program or work, and a "work
based on the Program" means either the Program or any derivative work under
copyright law: that is to say, a work containing the Program or a portion of
it, either verbatim or with modifications and/or translated into another
language. (Hereinafter, translation is included without limitation in the
term "modification".) Each licensee is addressed as "you".

  Activities other than copying, distribution and modification are not
covered by this License . . . .
--

Why not add a new term, say "trivial binding", defined as "an otherwise
seperate program or work for which the only substantial use is binding,
including, referencing or calling the Program."

Its well known that any device (or program) whose only substantial use is to
use otherwise copyrighted material is actionable under the copyright laws.
However, when the program can use a non-GNU substitute, for example, it will
not fall under this "trivial binding" clause.  I think a good example is
RIAA's battles against MP3--the 9th circuit recently agreed that the RIO
player could not be (preliminarily) enjoined from distribution in part
because it had a substantial legitimate use.

This would also fall neatly in the frame linking/deep linking example
brought up earlier. When, say, your page code has no substantial use other
than linking to another's content, there is cause to complain.  However, /.
or any number of news services which link directly to other's news articles
have a substantial use other than pointing to another's content, thus it
would be more difficult to hold any claim against them.

This is a developing area of law, but having a distinction discussed within
the license cannot hurt when few legal standards have yet developed on the
subject.

Comments?

-Doug
dhudson at gwu.edu