How To Break The GPL - Direct Functionality versus Copyrighted Expression

Rod Dixon, J.D., LL.M. rod at
Sun Mar 5 17:55:54 UTC 2000

This is not entirely correct. EULAs cover interests other than copyright
interests because the copyright owner desires to set out other limits that
copyright law does NOT  provide. Copyright law sets out the default rules
and unless you want to assign your copyright, licenses are not required.
Copyright holders use licenses to change the default rules or add to them,
but not to set them; copyright law does that. Is this clear? In other words,
our discussions about the GPL entail at least two bodies of law: 1)federal
copyright law and 2) state  contract law(s).

Rod Dixon, J.D., LL.M.
rod at

> -----Original Message-----
> From: Dennis E. Hamilton [mailto:infonuovo at]
> Sent: Sunday, March 05, 2000 10:54 AM
> To: Ken Arromdee; license-discuss at
> Subject: RE: How To Break The GPL - Direct Functionality versus
> Copyrighted Expression
> I am concerned that moving this discussion toward "direct
> functionality" is
> completely leaving the domain of Copyright, at least as it has been dealt
> with in the United States.  So long as the GPL is solely a license of some
> or all of the exclusive rights that are possessed by an owner of a
> copyright, we should confine ourselves to copyrightable subject matter.
> My sense of this is that it is important to recognize that
> copyright applies
> to *expressions* fixed in tangible forms.  (e.g., an actual source code,
> this e-mail note as rendered by a computer, etc.)  Generally, the idea,
> procedure, or "function" expressed in a work protected by copyright is not
> protected by copyright.  It may be protected by other means, but not
> copyright.
> In the U.S. copyright history there has also been a principle of
> utilitarian
> necessity.  That is, if the ways of expressing a particular idea
> or concept
> are severely limited, then a court is likely to rule that such
> expression is
> not protected by copyright.  This seems to be so one cannot copyright
> language and one cannot use copyright to obtain the power of a patent by
> round-about means.  Note that this principle did *not* protect Borland in
> the Lotus suit over replication of the Lotus 1-2-3 look-and-feel
> as a "skin"
> for Quattro Pro.  At the same time, it is generally agreed (and tested in
> courts a little) that APIs are not protected works from the standpoint of
> copyright.
> Now, software presents some novel conditions around expression, mention,
> usage, and performance.  We run into that in discussions of derivative
> works.  It is important to remember that whatever the FSF claims
> about this
> regarding the GPL, this has not, as far as I know, ever been upheld in a
> court of law.
> Yes, there is a cloud around this because of the lack of a definitive
> precedent (as far as I know).  This means that users of GPL's works in
> conjunction with non-GPL'd works are appropriately wary.  On the
> other hand,
> relying on this to obtain constraints on the use of a work that may not be
> ones right to restrict is not particularly useful either, since this
> supposed exclusive right around usage or "co-operation" can vanish in the
> twinkling of an eye.
> So long as the GPL is solely a copyright license, it cannot assert an
> exclusive right that the distributor of the work doesn't possess
> as a matter
> of copyright.  (This is why there *are* EULAs and licenses for
> the *use* of
> commercial software.  Copyright alone is insufficient to prevent
> re-engineering and a host of other things that EULA-bound licensees agree
> not to perform.)
> I just want to suggest being mindful that we are talking about copyrighted
> subject matter here and not other things.   When we are discussing a
> thin-ice area (e.g., derivative works that don't involve alteration of the
> original in any way but depend on the function expressed), it is
> not prudent
> to head farther into the center of the lake for resolution.
> -- Dennis
> ------------------
> Dennis E. Hamilton
> InfoNuovo
> mailto:infonuovo at
> tel. +1-206-779-9430 (gsm)
> fax. +1-425-793-0283
> -----Original Message-----
> From: Ken Arromdee [mailto:arromdee at]
> Sent: Saturday, March 04, 2000 23:12
> To: license-discuss at
> Subject: Re: How To Break The GPL
> On Sat, 4 Mar 2000, David Johnson wrote:
> > But what does "direct functionality" mean in terms of
> licensing? I can see
> > functionality being added to a GPL application in ways that
> both would and
> > would not violate the GPL. If I wrote a new plugin for Gimp, it
> would add
> > functionality, but would only have runtime linkage. But putting
> the exact
> some
> > code within the body of the Gimp source code cause it to come under the
> purview
> > of the GPL.
> According to RMS, plugins are *also* derivative works, so both
> your examples
> would come under the GPL.  (Which produces the odd result that it is legal
> to write a GPL plugin for Internet Explorer but not for Netscape 4, since
> Internet Explorer comes under the system component exception.)

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