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From "Roy T. Fielding" <field...@gbiv.com>
Subject Re: What licenses in category X satisfy criterion #2?
Date Wed, 05 Mar 2008 18:45:01 GMT
On Mar 4, 2008, at 11:19 PM, Ralph Goers wrote:

> As http://people.apache.org/~rubys/3party.html states, the LGPL  
> violates constraint #3, not #2.  Criteria #2 refers to licenses  
> like the GPL which says in part
>
>> The "Program", below,
>> refers to any such program or work, and a "work based on the Program"
>> means either the Program or any derivative work under copyright law:
>> that is to say, a work containing the Program or a portion of it,
>> either verbatim or with modifications and/or translated into another
>> language.

A lawyer would most likely point out that "derivative work" is one of
the few terms actually defined by US copyright law:

    http://www.copyright.gov/title17/92chap1.html#101

and further that the above paragraph was carefully crafted to avoid
redefining "derivative work" while at the same time saying something
which has no basis in the law (because that's what RMS wanted).

A work containing a verbatim copy of another work is a "collective  
work".
It only becomes a derivative work when some additional creative effort
is applied to recast, transform, or adapt the original in a way that is
substantial enough to merit its own copyright as an original expression.

> So any program which uses a library licensed under the GPL must  
> also be licensed under the GPL as they would be considered to be  
> derivative works. Like it or not, any software that you write that  
> uses software written by someone else isn't a completely  
> independent work since you are building upon the work of others.

That's not relevant.  There are a lot of "information products" that
are not eligible for copyright exclusions.  IIRC, one of Larry's pet
peeves is this notion that an API specifically intended for use by
others can somehow cause a user to make their work derivative.
The fact that the user has done nothing to the original in order to
make use of the API should be sufficient to prove that it can't
(on its own) be considered a derivative work -- it is merely using
the original work (and "use" is not covered by copyright law).

However, even though the FSF's claims regarding derivative work are
often larger than life, Apache has historically tried to obey whatever
the copyright owner wishes even when it has no basis in copyright
law.  The reason for that is our one true principle that isn't even
mentioned in the 3party draft: Apache only accepts voluntary
contributions.  If the FSF does not want us to redistribute a work
that they legitimately own, then we don't redistribute that work.

> As for the ServiceMix case, there are at least two reasons their  
> case needed to be brought before the legal committee.
> 1. No use of the LGPL had ever been permitted before. While in my  
> opinion the ServiceMix case is allowed under 3party.html it still  
> needs to be formally approved.

Sorry, not true.  Expat was LGPL when it was first adopted by httpd.
The Expat license was changed later.

> 2. Part of the consideration is not only what the license is but  
> how the third party component is used. There are cases where use of  
> a GPL component may be allowed and there are cases where the LGPL  
> will be disallowed. For example, in my opinion a project that  
> requires and only works with Hibernate (LGPL) shouldn't be allowed.

Hibernate is just another platform component unless we redistribute
it ourselves.  There is no reason to limit the ASF to working on
BSD-based platforms.

....Roy

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