How To Break The GPL

[Rod Dixon, J.D., LL.M.]

John,
Your hypo is interesting. I think it highlights how different software is
from other literary works protected by copyright. I have a couple of
thoughts on this.

> Rod Dixon, J.D., LL.M. scripsit:
>
> > Under the law of copyright, a derivative work is an original work of
> > authorship based on a pre-existing work.
>
> What we have here is analogous to the following:  Trent writes an article
> which he copyrights.  He then grants to the public (i.e. anyone) the
> right to make derivative works of the article under certain conditions X.
> Alice wishes to sell to Bob a derivative work based on Trent's article.
Well, it is obvious why this hypo does not quite work. Assuming, for the
sake of argument, that Alice's derivative work is a french translation of
Trent's article (which under the law of copyright would be the very
definition of a derivative work), Bob would not buy it. The GPL would
require the translation to be added to the original work and be distributed
along with the original English language version of Trent's article.
Consequently, it would be free. The "public domain" is enriched.  The
interesting thing about open source theory is that its objectives are easily
achieved with some literary works, but not others. Software poses a unique
set of circumstances in that the source code may be hidden or difficult to
de-compile.
> Instead of sending him a marked-up copy, she tells him to get Trent's
> article himself and then mark it up according to her instructions.
This would be an absloute no-no, if you mean Alice instructs others how to
infringe Trent's copyright or breach Trent's GPL.
> Alice copyrights her instructions with a restrictive copyright.
Hmm... for this hypo I do not think this works. Alice's instructions on how
to make a derivative work out of Trent's article does not sound like
copyrightable subject matter. Even if it is, if Alice's intstructions
induces Bob to infringe or breach an agreement, then Alice has an entirely
different set of problems than we have discussed so far.
> Bob's action in marking up Trent's article does not violate conditions X.
Well, the problem with the hypo is that it ends too soon. Bob may have to
make his translation available to Trent even if he does not distribute it
according to the GNU GPL. In doing so, Alice is out of business.
Consequently, even if Alice is able to slide through all of the trap doors
of the GPL (and you may be exactly right that she may), there is little
incentive for doing so. She will not make money. As for software, Alice MAY
get away with this, but Bob may have to give up her code when he adds his
derivative work to Trent's original project.

Rod