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    SubjectRe: GPL vs non-GPL device drivers
    Actually, it's quite clear under US law what a derivative work is and
    what rights you need to distribute it, and equally clear that
    compiling code does not make a "translation" in a copyright sense.
    Read Micro Star v. Formgen -- it's good law and it's funny and
    readable.

    I've drafted summaries from a couple of different angles since VJ
    requested a "translation into English", and I think this is the most
    coherent (and least foaming-at-the-mouth) I've crafted yet. It was
    written as an answer to a private query to this effect: "I write a
    POP server and release it under the GPL. The Evil Linker adds some
    hooks to my code, calls those hooks (along some of the existing ones)
    from his newly developed program, and only provides recipients of the
    binaries with source code for the modified POP server. His code
    depends on, and only works with, this modified version of my POP
    server. Doesn't he have to GPL his whole product, because he's
    combined his work with mine?"

    This is a fundamental misconception. A <<product>> is not a "work
    of authorship". Copyright is about "works of authorship" and cannot
    be used to allow or disallow behavior based on whether you have
    <<combined>> two things at an engineering level to make a product. A
    contract can be used to allow or disallow, and assign penalties to,
    all sorts of things, and the GPL is an "offer of contract"; but its
    plain text does _not_ disallow this <<combination>> -- largely because
    the drafter was trying to put one over on you and me by pretending that
    he could do that without recourse to contract law.

    The fact that your Evil Linker's program will not do anything
    interesting without your program is no more relevant than the fact
    that Borland's spreadsheet program will not do anything interesting
    without a spreadsheet document loaded. Borland's interest lay in
    making their macro language compatible with Lotus's so that users
    didn't have to rewrite their documents from scratch. The Evil
    Linker's interest lies in making their program compatible with other
    clients of your POP server so they don't have to rewrite your POP
    server from scratch. Borland won in court, and so will the Evil
    Linker. IANAL, TINLA.

    Now, Borland _almost_ lost at the Supreme Court level. Why? Because
    while they had a good case that it wasn't practical to copy the 1-2-3
    macro language without copying its entire user interface, that gets
    awfully close to the sort of expression that copyright is supposed to
    protect. You can take a picture of a skyscraper and sell copies of
    that picture, not because it isn't in some sense an infringement on
    the architect's copyright, but because it's "fair use" -- mostly
    because it doesn't interfere with the architect's ability to make
    money licensing _architectural_ replicas of her work. When you take a
    screenshot of a spreadsheet, you're on safe ground; but if you use
    that screenshot to clone the spreadsheet, you're pushing your luck.

    Borland won, sort of, when the Supremes split 4-4 (one was out sick or
    recused or something). If you want to know why, you can get hold of a
    transcript of the oral argument before the Supreme Court, which is
    mostly in plain English and about half debate between the Justices
    about where they ought to draw the line. For an example where
    screenshots can be over the line, and where even unlicensed
    distribution of data files can be held to infringe the copyright on
    the program that reads them, read Micro Star v. Formgen (9th Circuit).
    That involved a very different theory though, infringement on the
    "characters and mise en scene" of a fictional work (Duke Nukem 3D),
    and will not avail you against the Evil Linker. All of this stuff is
    covered in Lexmark v. Static Control (6th Circuit, cert. denied) --
    the law of the land throughout the U. S. of A.

    But wait, you say -- the Evil Linker modified, copied, and distributed
    my POP server too! That makes him subject to the terms of the GPL.
    And you're right; but to understand what that means, you're going to
    need to understand how a lawsuit for copyright infringement works.
    The very, very, very concise version is:

    You claim "copyright infringement".
    He claims "copyright license" -- "acceptance through conduct" of a
    "valid offer of contract".
    You claim conduct outside the "scope of the license".
    He claims the terms about distributing modified versions together with
    source code are "covenants of return performance", which he duly
    performed.
    You claim the license covers the whole <<work based on the Program>>,
    including his application.
    He points out that <<work based on the Program>> is explicitly defined
    in GPL Section 0 to be a "derivative work under copyright law", and
    that while the paraphrase following this overstates the extent of the
    "derivative works" category, a raft of case law says that his program
    is not a "derivative work" of yours. Furthermore, it would be
    "contrary to the public interest" to allow a "contract of adhesion in
    rem" to disallow the "universal industry practice" of <<aggregating>>,
    for engineering purposes, many differently licensed works on common
    media, whether or not they <<function together>> in different and
    better ways than they would without one another's presence.
    He moves for "judgment as a matter of law", saying that the skeletal
    outline of facts already on the table is sufficient to demonstrate
    that none of your "legal theories" can possibly succeed.

    Judge agrees with him, saying that the parties have formed an
    incontestably "valid contract", contracts must be "construed against
    the offeror" in the presence of ambiguity, and any "defects in
    performance" that you might be able to demonstrate would almost
    certainly not "strike to the heart of the contract". Therefore
    you have no grounds for "rescission", and the license stands with
    respect to the original work and the "modified", <<compiled to object
    code>>, "copied", and "distributed" version created by the Evil
    Linker. No other "infringing work" has been created, because the
    <<combination>> of your work and his is neither a "derivative work"
    nor a "copyrightable compilation", merely a "parcel of goods". You
    have not been "harmed" in any way that you have not already "waived
    the right to sue" for, so you have no recourse under "tort"; you have
    no "contract in personam", so you cannot sue for "breach of contract";
    you owe "costs" to the court and "cost of defense" to the defendant.

    Judge sends you home, a sadder but a wiser man. Or, if not wiser,
    preparing to cost yourself a lot more money by appealing the judgment.

    Everything in "double quotes" in that analysis is a legal term of art,
    _throughout_the_developed_world_. Everything in <<angle quotes>> is
    not. (I am not a lawyer, this is not legal advice.) Anyone, even a
    Justice of the US Supreme Court, who tells you that he has the
    authority to bend the meaning of a legal term of art, in the presence
    of a mountain of applicable case law, is a shyster and a poltroon.
    When he's been doing it for twenty years, ten of them with the
    ostensible authority of a professor of law and legal history, and
    making $500K a year or so doing it, he's a charlatan and a racketeer.

    Cheers,
    - Michael
    -
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