[linux-elitists] Linus Torvalds puts GPL "derivative work" debate to rest

Seth David Schoen schoen@loyalty.org
Sun Dec 7 18:54:17 PST 2003

Nick Moffitt writes:

> http://www.groklaw.net/article.php?story=20031205135223118
> [Quoting Linus Torvalds]
> > "I ended up looking up the exact wording of the US copyright law for
> > the definition of 'derivative', and guess what I find a few lines
> > below it:
> > 
> > 	'The term "financial gain" includes receipt, or expectation of
> > 	receipt, of anything of value, including the receipt of other
> > 	copyrighted works.' 
> [...]
> > "So . . . when he attacks the GPL as being somehow against
> > 'financial gain', that notion that the GPL has of 'exchange of
> > receipt of copyrighted works' is actually EXPLICITLY ENCODED in the
> > US copyright law. It's not just a crazy idea that some lefty commie
> > hippie dreamed up in a drug-induced stupor. 

Of course, the GPL is not really a matter of software barter (which
the NET Act made a criminal offense if the software is proprietary).
SCO might object that the GPL fails to promote progress because it
permits some amount of free riding.

> http://www4.law.cornell.edu/uscode/17/101.html
> > A ''derivative work'' is a work based upon one or more preexisting
> > 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''.

That's why the question of whether one computer program is a
derivative work of another is a question of caselaw rather than

Seth David Schoen <schoen@loyalty.org> | Very frankly, I am opposed to people
     http://www.loyalty.org/~schoen/   | being programmed by others.
     http://vitanuova.loyalty.org/     |     -- Fred Rogers (1928-2003),
                                       |        464 U.S. 417, 445 (1984)

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