[License-discuss] License incompatibility (was Re: Open source license chooser choosealicense.com

Lawrence Rosen lrosen at rosenlaw.com
Wed Sep 11 18:01:04 UTC 2013

Thanks Till, this was a very useful summary of the situation in Europe!  

I believe you've begged the question, however, by saying this:

> Apparently, a computer program which is _not_ derived from
> GPL code has nonetheless to be licensed under the GPLv2 when
> the original GPL code and the program are not distributed 
> "as separate works".

I'll take as your premise that we're talking about distributing "a computer program which is _not_ derived from GPL code." That simplifies our analysis.

Certainly in most of the collective works or compilations distributed by software companies under a variety of copyleft and non-copyleft licenses, the most interesting and useful parts of those applications software are NOT derived from GPL code. Those larger applications, comprised of many FOSS and non-FOSS components, evidence a great deal of independent creativity and development effort. Although we know that creativity and effort alone does not determine the copyright status of those applications, we can say that the reward system in software development is tied to such independent creative development efforts. 

It will take more than wishful thinking and static linking to subject those independent creative works to the GPL and thereby to reduce the rewards available to their authors.

Does the distribution of a GPL-licensed work along with those "separate works" convert them into something "not separate" in the copyright sense? Does a staple or a paper clip or a book binding convert separate works to something not separate in the copyright sense?

You refer to a "binary blob." That is an interesting phrase which has no analogue in copyright law. How would a European lawyer define such a thing in a FOSS license so that, as long as even one blob-ette within it is GPL, binary blobs as a whole subject are to the GPL?

You concluded that "the situation is far from being clear." Maybe I'm being naive, but it is clear to me that the law in the US and Europe favors the free interoperability of legitimately acquired software and disfavors claims of infringement by mere linking.

Best regards, and thanks again for stepping into this minefield. I'd much rather hear your thoughtful views and those of our colleagues than ambiguous threats of infringement from GPL enforcers without any legal analysis behind them.


-----Original Message-----
From: Till Jaeger [mailto:jaeger at jbb.de] 
Sent: Tuesday, September 10, 2013 10:25 AM
To: license-discuss at opensource.org
Cc: Bradley M. Kuhn; Lawrence Rosen
Subject: Re: [License-discuss] License incompatibility (was Re: Open source license chooser choosealicense.com

Dear list,

Bradley and Larry have asked me to share my view as a European lawyer on the question if linking of software components (necessarily) results in a "derivative work" as understood by the GPL. In a nutshell, my thoughts are the following (a more comprehensive overview can be found at http://www.ifross.org/Druckfassung/Ziffer%202.pdf, unfortunately in German

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