BSD / GPL compatibility - Derived vs. Fair Use

Dennis E. Hamilton infonuovo at
Wed Feb 16 05:54:32 UTC 2000

I want to clear up something that seems to be clouding this discussion.
Here is my personal assessment:  (IANAL, I just sound like one.)

1.  Fair use is an application of a copyrighted work that does not require
any permission or license to perform.  In the past, the U.S. Copyright Act
has given legal definition to fair use and stipulated what those usages are.
There is, in effect, a statutory automatic permission regardless of the
copyright status of a literary work.  (There are other parts of the
Copyright Act that establish mandatory licenses for certain acts, and also
charter payment mechanisms for those acts.)  Fair use is very limited and
does not include creation of derivative works.  In addition, the recent
tendency has been to limit fair use even more.  (For example, it can be a
copyright infringement to exhibit a copy of a protected work that you own
but have defaced in some way, even though it could still be found by a court
that freedom of speech takes precedence in a specific disputed case.)

2. The making of a derivative work is one of the subdividable rights that
come with copyright.  The copyright holder has the exclusive and complete
say in creation of derivative works.  Period.  If that weren't the case, it
would be meaningless to say anything about it in creating a free,
non-exclusive, royalty free copyright license such as the GPL.

3.  Although much software is licensed and not simply sold as publication of
a copyrighted work, the GPL and other open-source licenses are copyright
licenses.  Most software publishers are careful to place copyright notices
and also to assert their copyright.  The use of a "licensed not sold
stipulation" is above and beyond the protection of copyright and is, I
suppose, a matter of a contract between the purchaser of the license and the
software publisher.  (Which is why you have to declare you have read and
understood that you are entering into such an agreement on various
click-through arrangements.)  As far as I can tell, that simply doesn't
apply to the GPL (though people who deal in GPL'd distributions can
certainly engage in additional licenses -- e.g., for maintenance and support
and even warranty protection -- but those licenses can't alter or circumvent
the GPL of the copyrighted subject matter in any way).

In the context of these discussions, I suggest that it is valuable

1.	To omit consideration of fair use.  Making a derivative work of software
doesn't qualify.  The conditions under which fair use might arise with
software are simply not useful for this discussion.

2.	To focus on discussion of derivative works.  Making derivative works is a
right reserved to the original copyright holder, and so a license is indeed
required to make one.  And this is all provided for under copyright law.  In
particular, there is no implied right to make a derivative work by someone
who is not the copyright holder, so what a copyright license says about it
is highly pertinent.

3.	To ignore other kinds of licenses as relevant to open-source licensing.
OSD-satisfying licenses seem pretty clearly oriented to the licensing of
acts that are specifically protected by copyright.  Nothing else seems to be

-- Dennis

-----Original Message-----
From: Ian Grigg [mailto:iang at]
Sent: Tuesday, February 15, 2000 13:46
To: license-discuss at
Subject: BSD / GPL compatibility

> > OK, so does the same apply in reverse?  I guess it does, so
> > I can take any part of a GPLed work and shove it into my code
> > and distrubute it as BSD.
> No, this is not possible. While programs distributed under the GPL may use
> BSD (minux advertising clause) code the reverse does not apply. The GPL is
> viral in this situation.

I'm sorry if I didn't make myself clear, here's a rehash.

Derived works are a concept of law of copyright.  They are
fairly broad, and applicable to all published works.  AFAIK,
IANAL.  They are designed to protect the property rights of
the author, whilst giving access to portions for fair use.

If the feature of derived works applies to BSD covered code,
then it probably equally well applies to GPL code.  If, indeed,
copyright law is applicable and provides access and protections,
then it would normally apply equally to all publishers.  It's
not really a concept that a publisher can restrict the offering
when publishing.

Of course the big IF is whether copyright law has anything to
do with it.  I believe it doesn't, in which case the concept of
derived works do not apply to any licence-covered code.


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