Question Regarding GPL

Rod Dixon, J.D., LL.M. roddixon at
Sat Jan 21 01:34:14 UTC 2006

The only "legal advice" I can offer is that I think the individual who 
posted the question will need to obtain legal counsel for a specific and 
direct answer to the question posted. That said, I think we can say that 
generally the poster's question is certainly a difficult question to answer 
in the abstract...especially in the context of software.

Generally, to determine whether a derivative work is created (which is a 
mixed question of fact and law in the U.S.), a court will analyze two 
factors: (1) whether the module incorporates some form of the copyrighted 
GPL'd work, and (2) whether the module is substantially similar to the GPL'd 
work. The abstraction-filtration-comparison test applies to the latter 
factor, not the former; consequently, it is not a dispositive test as 
someone seemed to imply.


----- Original Message ----- 
From: "Rick Moen" <rick at>
To: <license-discuss at>
Sent: Friday, January 20, 2006 5:25 PM
Subject: Re: Re: Question Regarding GPL

> Quoting Ben Tilly (btilly at
>> My understanding of his opinion is that in the case of a loadable
>> module, there is no derived work until one is created by the end-user
>> loading the module (which is within that user's rights to do), and
>> after this derived work is created the GPL is not triggered because
>> the user never does anything that touches on copyright law.
> Whether one work is a "derivative" of another within the meaning of
> copyright law is a factual question that -- in USA legal jurisdictions --
> would be decided by reference to the "abstraction, filtration, comparison"
> test detailed in the ruling precedent, CAI v. Altai, Inc., FN53:
> 982 F.2d 693, 23 USPQ2d 1241 2d Cir. 1992), which was further detailed
> in Gates Rubber v. Bando Chemical, FN57: 9 F.3d 823, 28 USPQ2d 1503 10th
> Cir. 1993.
> For your leisure reading, here's the Altai decision:
>> IANAL, this is not legal advice, etc.
> IANALOSCJ.  (I am not a lawyer or Supreme Court Justice.)
> Oops, I forgot to also mention Micro Star v. FormGen, Inc., 154 F.3d
> 1107 9th Cir. 1998, and had better do so before John Cowan cluebats me
> about it.  (Infringing software work incorporated original's creative
> elemenets, even though they didn't share even a single line of code.)
> -- 
> Cheers,                                        "He who hesitates is 
> frost."
> Rick Moen                                                 -- Inuit proverb
> rick at

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