[sf-lug] need advice: GPL licensing question

Rick Moen rick at linuxmafia.com
Thu Sep 13 15:54:11 PDT 2007

Quoting Catherine Jones (cathjone at eskimo.com):
> Thanks, Rick and Jeff, for the clear position:
> >Collections of data thus are not considered creative works, and do not
> >give rise to copyright title. [not-a-lawyer legal disclaimer snipped]
> That makes sense to me, and I'm proceeding on that assumption.

Well, what I was saying is that collections of data _per se_ are not
deemed creative works.  That doesn't preclude someone fashioning a
creative work from a collection of data.

There was a famous US Supreme Court case, "Feist v. Rural Telephone
Service", where Rural Telephone (a local telco) tried to prevent Feist
from republishing its white-pages listings on copyright grounds.  Rural
Telephone lost, on grounds that just arranging a set of names and
telephone numbers in alphabetical order does not bring into existence a
creative work within the meaning of the Copyright Act.  (See:

> But there may be, down the road, an interesting question having to do
> with the definition of creative work.


> Within the quilt-making community it's a common practice for people to
> put copyright notices on schemata for making quilts.

See, XML schemata for making a quilt might easily qualify as 
creative works within the meaning of the Copyright Act.  However....

The question you should then ask yourself is what creates a derivative
work.  The theoretical legal framework is this:  You acquire a copy of
Work A, whose copyright owner has given you permission to do various
things with it that are otherwise reserved rights (reserved to him/her)
including creation of derivative works, provided you meet some
obligations.  For the sake of discussion, suppose he specifies the
obligations listed in GPLv3.

A derivative work would be a new work that uses (copies)
copyright-covered expressive elements of Work A.  (Copying purely
functional elements of Work A never requires permission, as those don't
qualify for copyright in the first place.)

Using a program on a data file strikes me as being absolutely nothing at
all like the creation of a derivative work.  Thus, making that use of a
program you've lawfully acquired shouldn't require the program copyright
owner's permission at all.

FSF tends to take a -- how shall I put this cordially? -- maximalist 
view of the requirements for using GPLv3 or GPLv2-covered works.  FSF
representatives tend to spend a lot of time talking about "linking", for
example, as if that had some sort of meaning in copyright law.  

It doesn't.  The legal term of art "derivative work" does.

The GPL licence text includes a convenient term to describe putting two
works together in a fashion that doesn't comprise a derivative work:
"mere aggregation".  Of course, they would, in my experience, attempt to
convince you that some forms of combination aren't "mere aggregation"
that, actually, per copyright law, certainly are -- like operating on a
dataset using a program, for example.  But it's a useful phrase,

(As before, if you want to hear reliable information about how the law
applies to _your_ situation, you should consult a qualified attorney.)

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