[sf-lug] Potential GPL violation, with the potential intent to victimize our Elderly loved ones

Rick Moen rick at linuxmafia.com
Thu Nov 12 23:09:29 PST 2009

Quoting Jesse Zbikowski (embeddedlinuxguy at gmail.com):

> Bundling free with non-free software is referred to as "mere
> aggregation" in GPL2 and specifically permitted. You may want to read
> Linus Torvald's email on this topic:
> http://lkml.org/lkml/2007/6/16/202

Torvalds's explanation is excellent as far as it goes, _but_:

> It is OK for non-free software to depend on and connect to free
> software... however if they are so tightly connected as to form a
> single program, as in the combination of a kernel with modules, then
> the resulting single program is a derived work.

That's not really it.  

"Derivative work" is a term of art (i.e., a term with special, technical
meaning) within the area of copyright law.  In the USA, the United
States Code chapter 17, section 101 (which is the first section of the
Copyright Act, as amended innumerable times by Congress) gives a very
vague description:

   A "derivative work" is a work based upon one or more
   pre-existing works, such as a translation, musical arrangement,
   dramatization, fictionalization, motion picture version, sound
   recording, art reproduction, abridgment, condensation, or any other form
   in which a work may be recast, transformed, or adapted. A work
   consisting of editorial revisions, annotations, elaborations, or other
   modifications which, as a whole, represent an original work of
   authorship, is a "derivative work".

It's typical of Federal statutes like the Copyright Act that they 
leave a lot of ambiguities.  In the case of "derivative works", this
hole has gotten filled to a minor degree by administrative regulations
enacted by the Library of Congress's Copyright Office[1], but _mostly_
it's been filled in by caselaw, i.e., by court decisions in copyright

The court decisions in question have a great deal to say about what
_elements_ of a copyright-eligible work, such as a piece of software
that meets minimal requirements for originality, are eligible for
copyright coverage in the first place.  In particular, elements judged 
expressive in nature are copyright-eligible; ones dictated by
functionality and compatibility are not.  And, in some case, such as the
varieties of "fair use", even expressive elements can lawfully be used
without permission by third parties.  Copying of elements can be
either literal or non-literal; the latter can be illegal, or not.

So, the usual computer-geek notion that derivative work law necessarily
involves literal copying is incorrect.  The notion that "linking" has
something to do with it, popularised by the FSF, is likewise incorrect.

I have links to some of the important case decisions at
http://linuxmafia.com/kb/Licensing_and_Law , and recommend reading them
if you're interested.  They're surprisingly accessible to the layman.

[1] In this regard, statutes passed by Congress are classed as "enabling
legislation", that authorises executive agencies and departments to then
fill in the gaps and details with regulations that are then called, in 
contrast, "administrative law".  Both have the force of law, as do
judges' decisions, but administrative law must be within the limits set
by its enabling legislation.  Congressional law is codified in the
United States Code ("U.S.C."), while administrative law is published in
the Code of Federal Regulations ("C.F.R.").

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