[sf-lug] need advice: GPL licensing question

jim stockford jim at well.com
Thu Sep 13 16:07:34 PDT 2007

isn't the idea of copyright to protect an expression
of an idea (not the idea, the expression)? Can an
XML file or possibly a database express an idea
(e.g. XML file that describes a graphic image)?

On Sep 13, 2007, at 3:54 PM, Rick Moen wrote:

> 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:
> http://en.wikipedia.org/wiki/ 
> Feist_Publications_v._Rural_Telephone_Service)
>> But there may be, down the road, an interesting question having to do
>> with the definition of creative work.
> Quite.
>> 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,
> nonetheless.
> (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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