"Derivative Work" for Software Defined

PETERSON,SCOTT K (HP-USA,ex1) scott.k.peterson at hp.com
Wed Jan 15 15:14:52 UTC 2003

David --

"They do not have the right to control the distribution of other works."

I agree. But that misses the point. Assume two bodies of copyrightable
material in which the copyright in each is owned by a different person (X
and Y) and neither body of copyrightable material includes any copyrightable
material from the other person. Assume that D would like to distribute both
of these  As you say, X cannot prevent distribution of Y's material. That is
not the same thing as saying that D has the positive legal right to combine
anything that D wants with X's material when distributing X's material. To
distribute both X's material and Y's material, D requires permission of both
X and Y. X could decide to decline to give that permission for the case
where X's material was distributed on the same medium with Y's material.

I use the extreme restriction above to illustrate the legal possibilities.
The GPL does not go as far as the arrangement hypothesized for X above. The
GPL explicitly permits combined distribution of mere aggregations on a
single medium. I use this example to point out why I see no basis for the
argument that a restriction on material of others can't legally happen in a
permission-based arrangement.

"But can they control the distribution of other works that reside on the
same media as their own? That's your question in a nutshell, I think."

Not that's not a question in my mind. It is clear that that is legally
possible. It is also clear that the GPL does go that far, as indicated by
the "mere aggregation" language in the GPL. Instead, the GPL limits its
copyleft scope to material that has some more particular relationship to the
material originally licensed under the GPL. 

For the following discussion, I'll reuse the hypothetical in an earlier
message: assume some code A and some code B. Assume that B is licensed under
the GPL and that one is trying to answer the question, "When I distribute A
and B together, must A be distributed under the GPL?"

Some appear to assert that the only relationship that matters under the GPL
is whether A is a derivative work of B. That interpretation appears to me to
be inconsistent with the plain language of the GPL:
   "These requirements apply to the modified work as a whole.  If
identifiable sections of that work are not derived from the Program, and can
be reasonably considered independent and separate works in themselves, then
this License, and its terms, do not apply to those sections when you
distribute them as separate works.  But when you distribute the same
sections as part of a whole which is a work based on the Program, the
distribution of the whole must be on the terms of this License, whose
permissions for other licensees extend to the entire whole, and thus to each
and every part regardless of who wrote it.
   "Thus, it is not the intent of this section to claim rights or contest
your rights to work written entirely by you; rather, the intent is to
exercise the right to control the distribution of derivative or collective
works based on the Program."

So, the question I've been trying to ask is how one can interpret that
language in a way that is consistent with the view that all that matters is
whether A is a derivative work of B.

-- Scott
Scott K. Peterson
Corporate Counsel
Hewlett-Packard Company
One Cambridge Center
Cambridge, MA 02142
phone: 617-551-7612
mobile: 978-764-8615
scott.k.peterson at hp.com

-----Original Message-----
From: David Johnson [mailto:david at usermode.org]
Sent: Tuesday, January 14, 2003 11:30 PM
Cc: license-discuss at opensource.org
Subject: Re: "Derivative Work" for Software Defined

On Tuesday 14 January 2003 01:56 pm, PETERSON,SCOTT K (HP-USA,ex1) wrote:
> Larry --
> You keep returning to contract obligations. But, I'm not relying on any
> contract obligations. Any distribution that includes copyrightable
> from B needs the permission of B's copyright owner. The hypothetical that
> I've presented includes distribution of B. Thus, B's permission is needed.
> I'm trying to understand the conditions the copyright owner has attached
> the copyright owner's offer of permission to distribute B (the conditions
> in the GPL). So, the conditions specified in the GPL are relevant to what
> someone needs to do in order to legally distribute A+B, without regard to
> whether A+B is has some special status as a protected copyrightable work
> (B's protectable status is enough).

Authors have the right to control the distribution of their own works. They
not have the right to control the distribution of other works. But can they 
control the distribution of other works that reside on the same media as 
their own? That's your question in a nutshell, I think.

I don't think they can without a contract. But it doesn't matter because 
copyright covers the case where A+B is a derivative work, and the GPL covers

the case where A+B are separate works aggregated. What other cases are there

that don't reside in obscure corners?

Side note:
The way I understand GPL section 2, is that the "whole" must be under the
but the individual parts do not. An example of this would be kdebase, which 
includes BSD, Artistic, QPL and GPL applications tarballed together into a 
single GPL licensed file. Another would be the Linux kernel where a few 
source files are under the BSD license, but the kernel itself must still be 
under the GPL. In both cases you can extract the non-GPL pieces and 
distribute them separately under their original license.

David Johnson
pgp public key on website
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