Derived vs. Fair Use

Dennis E. Hamilton infonuovo at
Wed Feb 16 22:57:10 UTC 2000

I don't think so.  I am not sure how you see it having any influence.

Here's my understanding of the GPL'd library case.

If I GPL a library, I am not distinguishing among arguable cases of
"derivative" is all, and I am specifying conditions on all exclusive rights
that I have for making a derivative that I can give you a non-exclusive
copyright license to also perform.  Fair use, by definition, is not
something that I have any say about as a copyright holder, whether I give
you a license or not.  I saw one article that suggested that is precisely
the point of the fair-use doctrine, and it applies only where there is an
over-riding public interest, such as permitting review and criticism not
being stifled by creators hiding behind protection of copyright.  (Taking
code extracts for a textbook could easily fail that test, by the way, and
commercial publishers have elaborate rights and permissions rituals to
safeguard each other in precisely these situations.)

If there is a fair-use doctrine (and that would be established in court or
in the legislature) applicable to uses of software libraries that would
otherwise appear to be infringing acts, electing to employ the GPL would
make no difference.

If, on the other hand, *you* want to make sure people are able to perform
certain acts that might be found to be creation of derivative works, and you
are willing to give a quit-claim for those cases without waiting for legal
clarification, you use something fashioned like the LGPL, with a narrow
escape condition, or something with a broad escape condition (e.g., no
back-license) such as the MIT or the adless-BSD.

The recipient of your openware might not actually need the protection of the
quit-claim and your license may offer to give away something you don't
actually possess, but it certainly clears the air, since your license
prevents you from doing anything about it.

As I keep exploring open-software licenses, fair use simply doesn't come up.
For one thing, it is not something *I* have any say in at all.  (And for me
to *claim* fair use of someone's copyrighted work is something that I do at
my peril and is not relevant to my crafting and using a license of a
copyright that is my exclusive possession.)

I think you and I have alignment.  I just find it useful to point out that
the right of fair use is not something you can assign, and that claiming it
is not relevant to the language of copyright licenses.

-- Dennis

-----Original Message-----
From: Scott Johnston [mailto:johnston at]
Sent: Wednesday, February 16, 2000 09:48
To: license-discuss at
Subject: Re: Derived vs. Fair Use

>From: "Dennis E. Hamilton" <infonuovo at>

>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.

Fair use could apply to the discussion of whether it makes sense to GPL a
library, could it not?  Other than that, I agree.

Scott Johnston

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