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Subject: Re: fair use (was Re: What licenses in category X satisfy
	criterion #2?)
From: Robert Burrell Donkin <rdonkin@apache.org>
To: Joe Schaefer <joe_schaefer@yahoo.com>
Cc: legal-discuss@apache.org
In-Reply-To: <780599.84677.qm@web54408.mail.yahoo.com>
References: <780599.84677.qm@web54408.mail.yahoo.com>
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Date: Tue, 11 Mar 2008 22:30:49 +0000
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On Wed, 2008-03-05 at 07:37 -0800, Joe Schaefer wrote:
> --- Ralph Goers <Ralph.Goers@dslextreme.com> wrote:
>=20
> > Criteria #2 refers to licenses like the GPL=20
> > which says in part
> >=20
> > > 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.
>=20
> > So any program which uses a library licensed under
> > the GPL must also be=20
> > licensed under the GPL as they would be considered
> > to be derivative=20
> > works.
>=20
> I will repeat my statement that a license
> is not the arbiter of what is or is not a derivative
> work.  The question to me is whether or not writing
> some glue code to interface with some 3rd party=20
> GPL'd code qualifies as fair use, and is therefore=20
> not considered by the courts as a derivative work.

that depends on what you mean by derivative work :-)

AIUI the GPL 2.0 includes a redefinition of the term. if you accept the
license, the FSF claims that you agree to play by their rules. this
linking scenario is definitely what the FSF had in mind when they drew
up the GPL and (in the past) they have been aggressive in enforcing
these provisions. i don't know of anyone who's claimed that linking is
fair use of the GPL and won in court.=20

AIUI when applying fair use, the process matters. it is acceptable under
US copyright law to reverse engineer an interface for compatibility.
however, breaching the terms of the GPL by downloading the source and
writing and then linking against it is not typical reverse engineering.
it may well fall outside fair use.

- robert

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