

Beyond Thesis: Does the GPL go to far?  What constitutes a derivative work? - luminousbit
http://drewblas.com/2010/07/16/beyond-thesis-does-the-gpl-go-too-far-and-what-makes-a-derivative-work/

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beagle3
For f*ck sake, no. It doesn't go far enough.

Don't like the GPL? Don't use it; it's just that you then fall back on
standard interpretations of "derivative work", which -- you'll find, are at
least as restrictive.

8 notes are enough to constitute derivative work for music, as are 4
paragraphs. I'm not aware of specifics for code, but I believe they'll be even
less comfortable for you than any gpl interpretation.

~~~
pvg
It helps to read the article before getting indignant. And then maybe skipping
the indignant part. The author is talking about cases where no part of the
original at all is included in the new (and, he argues, not actually
derivative) work.

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michael_dorfman
I'm not a lawyer, but...

I think this article misses the point, and I think it goes wrong right about
here:

 _The GPL is a license. It deals with copyright law. It defines who is allowed
to copy & distribute the software (everyone)._

The GPL "deals with" copyright law, but that does not mean that all of its
force relies upon copyright law, nor does it mean that the definition of
"derivative work" in copyright law has any bearing on the problem at hand.

The GPL is a license, granting users the right to use the software. So, we can
use WordPress, because the author allows us to (by means of the GPL).

The GPL puts restrictions on our use. Among these, that if we wish to produce
any derivative works (under the GPL's definition of "derivative"), we must
also release these under the GPL. As far as I can tell, copyright law has
nothing to do with this restriction.

~~~
jmillikin
> _The GPL "deals with" copyright law, but that does not mean that all of its
> force relies upon copyright law_

Actually, it does. The GPL is a copyright license, which means its only
restrictions derive from copyright law. It can't prevent activities otherwise
allowed by copyright.

> _The GPL is a license, granting users the right to use the software. So, we
> can use WordPress, because the author allows us to (by means of the GPL)._

The GPLv2 (the version in discussion here) explicitly denies that it covers
running software:

    
    
      Activities other than copying, distribution and modification
      are not covered by this License; they are outside
      its scope. The act of running the Program is not
      restricted
    

> _The GPL puts restrictions on our use. Among these, that if we wish to
> produce any derivative works (under the GPL's definition of "derivative"),
> we must also release these under the GPL._

There is no such restriction. You are legally allowed to produce derivative
works, without releasing the source to anybody. The catch is to do so, you
must not distribute the derived work in a way which requires copyright
permission. Once you distribute a derived work, copyright (and thus the GPL)
applies.

~~~
michael_dorfman
Thanks for setting me straight on all points.

This means, I then assume, that the usage of WordPress (for example) is
regulated solely via the "Terms and Conditions" for WordPress, and the GPL is
not a factor?

If that's the case, couldn't WordPress simply add a line to their "Terms and
Conditions" stating that all access to WordPress functions via Themes are
limited to those themes released under the GPL?

~~~
sigzero
"I" would say "no". If WP has public api calls and that is all a theme uses,
then WP cannot force GPL upon it. The theme is NOT a derivative in that case
in any rational sense of the word. Regardless of what WP thinks.

If you incorporate GPL'd code into your theme then I believe you abide by the
license. Regardless of what the author of the theme thinks.

~~~
xiaoma
By "public api calls", do you mean public as in public domain or as in under
the GPL?

If they're in the public domain, sure. If they're GPLed, then follow the
license as written.

~~~
jmillikin
APIs can't be copyrighted, at least in the US -- this is why projects like
Wine are legal. Software which calls a GPL'd library's API is not considered a
derivative work of the library. Otherwise, releasing X11/BSD/etc code which
calls GPL libraries wouldn't be legal.

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rbanffy
If it embeds, in itself, no Wordpress code (not even the examples) and is
distributed without any part of WP, I can't see why a WP theme should be
considered a derivative work. You could call the WP environment the theme runs
in forms a DSL on top of PHP and that a WP theme is no more a derived work of
WP than WP is derived from PHP.

If, however, it is based on an example template or shares non-trivial code
with it, then it's derivative work and should be under the GPL.

