what was the point?

Karsten M. Self kmself at ix.netcom.com
Mon Oct 22 08:42:50 UTC 2001

on Sun, Oct 21, 2001 at 05:46:11PM -0700, email at greglondon.com (email at greglondon.com) wrote:
> On Sun, 21 October 2001, Angelo Schneider wrote:
> > The GPL basicly requires you: all code "using" a GPLed source needs
> > to be released under GPL and distributed in source format. 
> that's what I don't get. the only way for some other code to 'use' GPL
> code is to 'link' it. but 'linking' is 'deriving'. and 'deriving' is a
> right reserved to the author under copyright law. 

"Use" in this context is sloppy, er, use.  I'd generally not rely too
strongly on the email you quote for legal guidance.

"Incorporate" would be better phrasing, and I'd suggest you use this
term in your discussion.  Incorporation of GPLd code triggers
distribution requirements under GPL section 3.

> but copyright law reserves no rights to the author regarding "use".

No longer strictly true, see 17 USC 1201 ff., recently discussed by
myself, Larry Rosen, and Wendy Selzer on this list.

> so, here's a hypothetical situation:
> Bob's Music Conglomeration starts releasing music as an object file.
> The license says "you can only link this music/object file with
> software licensed by Bob".  And Bob's player is a monolithic hulk of
> software that enforces a pay per play system, along with forced user
> registration, and reports back to Bob on user playing habits, etc.
> Alice makes a driver that play's Bob's music on Linux, and puts it on
> the web. Bob sicks his lawyers on Alice, telling her that since users
> have no right to link bob's music object files with her code, they're
> suing her for vicarious copyright infringment, by encouraging people
> to illegally link Bob's music files with her code that was not
> approved by Bob (i.e. she didn't pay him enough coin)
> Bob grants users restricted rights to derive, 
> so users can't derive with Alice's code, 
> so they can't link, 
> so they cant USE Bob's music but by his pay per play software.
> The way I'm understanding what everyone has said about copyright law,
> this suit would actually have some legal validity to it.

Not as I read it.

Bob is attempting to use copyright for his software (the linking /
playback system) to enforce copyright of the music underlying it.  You
haven't stated who owns the music, so let's assume that it's public
domain, just for kicks.  We'll also pretend the little copyright
abomination of '98 never happened.

Bob is using copyright to enforce functionality, and restrict access to
a work in the public domain.

My feeling, barring the DMCA, is that Sega v. Accolade and Sony v.
Connectix should serve well as a basis for the case that use of
copyright to deny functional behavior otherwise unaccessible, to
exercise fair use, and access public domain works, is unsupported by
copyright law.  The 11th Circuit's Wind Done Gone ruling also has some
interesting comments concerning ownership in copyright and ownership in

Note that other circumstances would argue against there being a right to
link against code in simply executing a work.  Your hypo brings in some
exceptional additional issues.



Karsten M. Self <kmself at ix.netcom.com>       http://kmself.home.netcom.com/
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