"Derivative Work" for Software Defined

Ravicher, Daniel (x2826) dravicher at pbwt.com
Wed Nov 13 14:54:07 UTC 2002

Thanks for your comments, David.  

I attempted in my article to present the law and apologize that it didn't
fulfill your purposes.  One resolution of your issues is to either bring a
Declaratory Judgment Action seeking to have a court answer your questions or
you could seek an opinion of counsel regarding whether one work, such as
your five line macro, template, linkage and inheritance examples, is a
derivative of an original.  BTW, I concede that such analysis may not be as
simple as we'd all liked it to be, but this is in part because a court will
not heed to a technician forcing it to talk techy speak.  Rather, to be
legally sound, one must speak legalease.  

On that note, whether the AFC test would apply easily to certain factual
examples or not would be highly irrelevant to the court's stare decisis
obligation.  Courts loathe to throw out established doctrine simply because
one says it doesn't fit the facts very well.  One can try to fashion their
own test, that they think better works with specific facts, but good luck
getting a court to adopt it.  

Lastly, upon reflection, I'm not so sure the AFC test wouldn't work just
fine with all of your hypotheticals.  The linking issue, despite the
incorrect statements of some technicians in the community that it turns on
static vs. dynamic, is rather straight forward.  The five line macro seems
similarly resolvable, and the templates and inheritance issues aren't nearly
as complicated as many fact patterns presented for analysis.


-----Original Message-----
From: David Johnson [mailto:david at usermode.org]
Sent: Tuesday, November 12, 2002 10:25 PM
To: dravicher at pbwt.com; license-discuss at opensource.org
Subject: Re: "Derivative Work" for Software Defined

On Tuesday 12 November 2002 07:36 am, Ravicher, Daniel \(x2826\) wrote:
> Free / Open Source Software ("FOSS") licensing relies critically on the
> concept of
> derivative work since software that is independent, i.e. not derivative,
> FOSS need not abide by the terms of the applicable FOSS license. 
> Therefore, one
> is left to ask, just what is a "derivative work?"  This article
> (http://www.pbwt.com/Attorney/files/ravicher_1.pdf) addresses that
> question. Your comments and thoughts would be most appreciated.

Some good information, but it doesn't really address the important questions

that may be facing open source developers:

1) If I include a five line macro in my software, will it be a derivative 
work? (ditto for inline and regular functions) Is there a difference if this

macro is copied via cut-and-paste versus a reference to a header file?

2) What about templates and template instantiation by the compiler? This is
important issue in C++. There are some major works that are nothing but 
templates (stl, libsig++).

3) What about dynamic and runtime linkage? Is the mere availability of 
functionality at runtime sufficient to determine derivation? Are all GUI 
Windows programs derivatives of Microsoft's win32.dll?

3a) Related: does it make a difference if the library in question exports a 
standard or otherwise common API?

4) Does OO inheritance (ei class derivation) constitute derivation in terms

The AFC test might help a tiny bit for 1 and 2, but not for 3 or 4.

David Johnson
pgp public key on website

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