a proposed change to the OSD

Bruce Perens bruce at perens.com
Sat Oct 26 17:28:30 UTC 2002

From: "Dr. David Alan Gilbert" <gilbertd at treblig.org>
> Can you explain to me (and the list) what the definition of a
> 'use restriction' is?

IANAL, of course.

For software, "use" is execution of the software.

Copyright law doesn't speak much of software at all, so we can't rely
on that for a definition and must look at court cases for precedents.

Creation of derived works is a separate right from use under
copyright law. It can be restricted separately from use, and vice
versa. The act of modifying software creates a derived work
that is partially your copyright, and partially that of the original

Public performance is a separate right as well, but in the U.S. it is
defined to apply to plays and audiovisual media, and _not_ to software.

There is some contention regarding whether linking creates a derived
work, and exactly one court case on the topic that isn't definitive.
Dynamic linking, server-izing, and cross-process procedure call schemes
like CORBA make this more complicated. With CORBA, you can "use" a
library without ever linking to it, and it would be difficult to proves
in court that a derived work would be created. In many of these schemes,
the derived work, if one exists, is created on the user's system at
run-time and it's going to be difficult to prove in court that it's
_distributed_ as a derived work. All of this makes it questionable that
the GPL's linking provisions with regard to source-code disclosure would
be enforced in court.

In an effort to create a more clearly enforcible GPL-like license, Larry
has relied on _use_ restriction rather than restriction of the creation of
derived works in his new license.


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