[License-discuss] proposal to revise and slightly reorganize the OSI licensing pages

[Chris Travers]

On Mon, Jun 11, 2012 at 12:43 AM, Bruce Perens <bruce at perens.com> wrote:
> What legal theory would make a user of an API a derivative work if the API
> is not itself copyrightable?
>
>
If there was a case like MySQL v. Nusphere without the contract, this
is what I'd argue.  Note I'd avoid saying "derivative" like the
plague.  I'd point out (assuming the following is true for sake of
argument):

There's ample documentation that the licensor intended this license
not to reach compiled or collected works linking this software to
proprietary components, and that extra licenses were required at that
point.  There's ample evidence the licensee was aware of all this.

I'd then argue that whether or not it's a derivative work is not at
issue.  What is at issue is whether the licensor intended the license
to allow the behavior in question and whether the licensee knew or
should have known this.  By distributing the code, they need copyright
permission.  That's not in dispute.  Therefore, the behavior is
outside the GPL and at least contract violation if not copyright
violation.  This may not be a derivative work but it's not really
permitted by the GPL.  Compiled/collected works require permission to
and some of these are "based on" in the view of the GPL even if they
are not "based on" in the way that term is used in copyright statutes.

I don't know if that's a winning argument (assuming the ample
documentation is there).  But if I wanted to argue it, that's the case
I'd make.

Best Wishes,
Chris Travers