"Derivative Work" for Software Defined

Lawrence E. Rosen lrosen at rosenlaw.com
Tue Jan 7 00:36:22 UTC 2003

I continue to believe that these confusing messages about "derivative
works" entirely miss the mark.  Where in the statutory or case law can
one find support for such conclusions as are reflected in these

If you don't create "a work based upon one or more preexisting works"
then you have simply not created a derivative work.  17 U.S.C. §101.
How in the world does an independently-written piece of software that
communicates with another independently-written piece of software
through a published API ever become a derivative work of that other
software?  Where in the GPL does it say that it can become a derivative

Nothing in the Copyright Act addresses the *use* of software in this
way.  If the GPL is enforced under the copyright law, then how could a
court ever conclude that it reaches to such API-connected pre-existing
works that merely get used together?

/Larry Rosen

> > > One of the questions about "Derivative Work" as it 
> relates to binary 
> > > only loadable objects, is the creation of a boundary layer of 
> > > execution. Specifically, the design and publishing an API which 
> > > properly glues into an open source gpl program or 
> kernel(ie loadable 
> > > modules services) designed to provide an execution layer 
> between the 
> > > GPL and Commerial private code. Where as no GPL code in 
> any form is 
> > > allowed to touch the Commerial code. The converse is true, 
> > > obviously.  The execution layer or boundary. Now using this 
> > > reference from 1995, many companies have gotten legal positions 
> > > about binary modules.
> > > 
> > > 
> http://groups.google.com/groups?as_umsgid=4b0rbb%245iu%40klaav
> > inki.fi
> What Linus says presumably is valid for Linux.  RMS agrees with that 
> in the message you forwarded.  It doesn't necessarily apply to any 
> program other than Linux.  Note in particular the last paragraph in 
> Linus's message.

If all one is using are headers or .h files and everything else is from
scratch, does using the headers under the statement above comply with
the intent?

I am not seeking an opinion without paying for it.

> > I ship and sell binary only products, so I have an interest in not 
> > restricting people.
> Other than your customers, presumably.  Restrictions cut both ways.

In what way would a restrict cut both ways here?

I am a little naive, but always try to do the right thing.



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