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Rework over-abundant use of term "derivative work"

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The older portions of this tutorial tended to favor the term "derivative
work", since that was the popular catch-all term used at the time the
text was written.

However, as the newer text regarding GPLv3 now states, FSF abandoned the
use of the term "derivative work" in the text of GPLv3 itself, for
various reasons we already discuss in the tutorial.

Therefore, the tutorial text itself should likely not rely so heavily on
the phrase "derivative work" throughout.  This change herein reworks a
number of places where "derivative work" was used in the tutorial and
replaced it with other terms.

Ultimately, some word-smithing happened as part of the process of doing
this patch.
This commit is contained in:
Bradley M. Kuhn 2014-10-15 22:14:45 -04:00
parent 2a111432b2
commit 2f2e5f9e4c
3 changed files with 91 additions and 89 deletions
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8
compliance-guide.tex
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@ -148,7 +148,7 @@ systems most often encountered typically consist of a full operating system
including components under the GPL (e.g., Linux, BusyBox) and components
under the LGPL (e.g., the GNU C Library). Sometimes, these programs have
been patched or slightly improved by direct modification of their sources,
and thus the result is unequivocally a derivative work. Alongside these programs,
and thus the result is unequivocally a modified version. Alongside these programs,
companies often distribute fully independent, proprietary programs,
developed from scratch, which are designed to run on the Free Software operating
system but do not combine with, link to, modify, derive from, or otherwise
@ -158,13 +158,13 @@ the GPL'd components.\footnote{However, these programs do often combine
In the latter case, where the work is unquestionably a separate work of
creative expression, no copyleft provisions are invoked.
The core compliance issue faced, thus, in such a situation, is not an discussion of what is or is not a
combined or derivative work, but rather, issues related to distribution and
combined, derivative, and/or modified version of the work, but rather, issues related to distribution and
conveyance of binary works based on GPL'd source, but without Complete,
Corresponding Source. This tutorial therefore focuses primarily on that issue.
Admittedly, a tiny
minority of compliance situations relate to question of derivative and
combined words. Those
minority of compliance situations relate to question of derivative,
combined, or modified versions of the work. Those
situations are so rare, and the details from situation to situation differ
greatly. Thus, such situations require a highly
fact-dependent analysis and cannot be addressed in a general-purpose

16
enforcement-case-studies.tex
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@ -268,7 +268,7 @@ surfaced from other violation reporters, both of whom had used the SDK
professionally and noticed clear similarities to FSF's GNU GCC\@. FSF's
Compliance Engineer asked the reporters to run standard tests to confirm
the violation, and it was confirmed that Bortez's SDK was indeed a
derivative work of GCC\@. Bortez had ported to Windows and added a number
modified version of GCC\@. Bortez had ported to Windows and added a number
of features, including support for a specific consumer device chipset and
additional features to aid in the linking process (``LP'') for those
specific devices. FSF explained the rights that the GPL afforded these
@ -279,9 +279,9 @@ confirmed that such requests were not answered.
FSF brought the matter to the attention of Bortez, who immediately
escalated the matter to their attorneys. After a long negotiation,
Bortez acknowledged that their SDK was indeed a derivative work of
Bortez acknowledged that their SDK was indeed a modified version of
GCC\@. Bortez released most of the source, but some disagreement
occurred over whether LP was a derivative work of GCC\@. After repeated
occurred over whether LP was also derivative of GCC\@. After repeated
FSF inquiries, Bortez reaudited the source to discover that FSF's
analysis was correct. Bortez determined that LP included a number of
source files copied from the GCC code-base.
@ -620,16 +620,16 @@ did so, and the violation was resolved.
cannot effectively replace them.
Such an outcome is simply further evidence that the combined work in
question is indeed a derivative work of the original GPL'd component.
question is indeed a modified version of the original GPL'd component.
If the other components cannot stand on their own and be useful without
the GPL'd portions, then one cannot effectively argue that the work as a
whole is not a derivative of the GPL'd portions.
whole is not a based on the GPL'd portions.
\item {\bf The whole product is not always covered.} In this case,
Vigorien had additional works aggregated. The backup system was a suite
of utilities, some of which were the GPL and some of which were not. While
the cryptographic routines were tightly coupled with GNU tar and clearly
derivative works, the various GUI utilities were separate and
made a whole new combined work of both components, the various GUI utilities were separate and
independent works merely aggregated with the distribution of the
GNU-tar-based product.
@ -641,7 +641,7 @@ did so, and the violation was resolved.
the GPL are ignored. If companies do not want to release source code
for some reason, then they should not base the work on GPL'd software.
No external argument for noncompliance can hold weight if the work as
a whole is indeed a derivative work of a GPL'd program.
a whole is indeed a modified version of a GPL'd program.
The ``security concerns'' argument is often floated as a reason to keep
software proprietary, but the computer security community has on
@ -720,7 +720,7 @@ case, it is not export controls --- an issue that has since been resolved
contains a software-programmable radio transmitter, regulations in (at
least) the USA and Japan prohibit release of those portions of the code
that operate the device. Since this is a low-level programming issue, the
changes to operate the device are a derivative work of the kernel named
changes to operate the device form a single combined work with the kernel named
Linux. A decade later, this situation remains largely unresolved.
\section{Lessons Learned}

154
gpl-lgpl.tex
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@ -1061,16 +1061,16 @@ not for the definition itself, which is rather straightforward, but
because it clears up a common misconception about the GPL\@.
The GPL is often mistakenly criticized because it fails to give a
definition of ``derivative work''. In fact, it would be incorrect and
problematic if the GPL attempted to define this. A copyright license, in
fact, has no control over what may or may not be a derivative work. This
matter is left up to copyright law and the courts --- not the licenses that utilize it.
definition of ``derivative work'' or ``combined work''. In fact, it would be incorrect and
problematic if the GPL attempted to define these terms. A copyright license, in
fact, has no control over the rules of copyright themselves. Such rules are
the domain of copyright law and the courts --- not the licenses that utilize
those systems.
It is certainly true that copyright law as a whole does not propose clear
and straightforward guidelines for what is and is not a derivative
software work under copyright law. However, no copyright license --- not
even the GNU GPL --- can be blamed for this. Legislators and court
opinions must give us guidance to decide the border cases.
Copyright law as a whole doesn't propose clear and straightforward guidelines
for identifying the derivative and/or combined works of software. However,
no copyright license --- not even the GNU GPL --- can be blamed for this.
Legislators and court opinions must give us guidance in borderline cases.
\section{GPLv2~\S1: Verbatim Copying}
\label{GPLv2s1}
@ -1531,7 +1531,7 @@ GPLv2~\S2(b), and they
can be a source of great confusion when not properly understood.
In considering GPLv2~\S2(b), first note the qualifier: it \textit{only} applies to
derivative works that ``you distribute or publish''. Despite years of
derivative, combined and/or modified works that ``you distribute or publish''. Despite years of
education efforts on this matter, many still believe that modifiers
of GPL'd software \textit{must} publish or otherwise
share their changes. On the contrary, GPLv2~\S2(b) {\bf does not apply if} the
@ -1548,16 +1548,15 @@ following text:
\begin{quote}
``...that in whole or part contains or is derived from the Program or any part thereof.''
\end{quote}
Again, the GPL relies here on what the copyright law says is a derivative
work. If, under copyright law, the modified version ``contains or is
Again, the GPL relies here on copyright law.
If, under copyright law, the modified version ``contains or is
derived from'' the GPL'd software, then the requirements of GPLv2~\S2(b)
apply. The GPL invokes its control as a copyright license over the
modification of the work in combination with its control over distribution
of the work.
The final clause of GPLv2~\S2(b) describes what the licensee must do if she is
distributing or publishing a work that is deemed a derivative work under
copyright law --- namely, the following:
The final clause of GPLv2~\S2(b) describes what the licensee must do if she
distributes or publishes a modified version of the work --- namely, the following:
\begin{quote}
[The work must] be licensed as a whole at no charge to all third parties
under the terms of this License.
@ -1573,7 +1572,7 @@ ideas into the tangible medium of electronic file storage. That
programmer is indeed the copyright holder of those new changes. However,
those changes are part and parcel to the original work distributed to
the programmer under GPL\@. Thus, the license of the original work
affects the license of the new whole derivative work.
affects the license of the new whole combined and/or derivative work.
% {\cal I}
\newcommand{\gplusi}{$\mathcal{G\!\!+\!\!I}$}
@ -1600,7 +1599,7 @@ product --- would its copyright holders give you permission to create and distr
\gplusi{} without paying them a hefty sum?) The license of \workg{}, the
GPL, states the options for the copyright holder of \worki{}
who may want to create and distribute \gplusi{}. The GPL's pre-granted
permission to create and distribute derivative works, provided the terms
permission to create and distribute combined and/or derivative works, provided the terms
of the GPL are upheld, goes far above and beyond the permissions that one
would get with a typical work not covered by a copyleft license. (Thus, to
say that this condition is any way unreasonable is simply ludicrous.)
@ -1630,14 +1629,14 @@ available to the public at large. However, the text here does not say
that. Instead, it says that the licensing under terms of the GPL must
extend to anyone who might, through the distribution chain, receive a copy
of the software. Distribution to all third parties is not mandated here,
but GPLv2~\S2(b) does require re-distributors to license the derivative works in
but GPLv2~\S2(b) does require re-distributors to license the whole work in
a way that extends to all third parties who may ultimately receive a
copy of the software.
In summary, GPLv2\ 2(b) says what terms under which the third parties must
receive this no-charge license. Namely, they receive it ``under the terms
of this License'', the GPLv2. When an entity \emph{chooses} to redistribute
a derivative work of GPL'd software, the license of that whole
a work based on GPL'd software, the license of that whole
work must be GPL and only GPL\@. In this manner, GPLv2~\S2(b) dovetails nicely
with GPLv2~\S6 (as discussed in Section~\ref{GPLv2s6} of this tutorial).
@ -1711,7 +1710,7 @@ be fully useful. Without the binaries, be they in object or executable
form, the software serves only the didactic purposes of computer science.
Under copyright law, binary representations of the software are simply
derivative works of the source code. Applying a systematic process (i.e.,
modified versions (and/or derivative works) of the source code. Applying a systematic process (i.e.,
``compilation''\footnote{``Compilation'' in this context refers to the
automated computing process of converting source code into binaries. It
has absolutely nothing to do with the term ``compilation'' in copyright statues.}) to a work of source code yields binary code. The binary
@ -1719,11 +1718,11 @@ code is now a new work of expression fixed in the tangible medium of
electronic file storage.
Therefore, for GPL'd software to be useful, the GPL, since it governs the
rules for creation of derivative works, must grant permission for the
rules for creation of modified works, must grant permission for the
generation of binaries. Furthermore, notwithstanding the relative
popularity of source-based GNU/Linux distributions like Gentoo, users find
it extremely convenient to receive distribution of binary software. Such
distribution is the redistribution of derivative works of the software's
distribution is the redistribution of modified works of the software's
source code. GPLv2~\S3 addresses the matter of creation and distribution of
binary versions.
@ -1772,7 +1771,7 @@ Therefore, GPLv2~\S3 requires that the source code include ``meta-material'' lik
scripts, interface definitions, and other material that is used to
``control compilation and installation'' of the binaries. In this
manner, those further down the distribution chain are assured that
they have the unabated freedom to build their own derivative works
they have the unabated freedom to build their own modified works
from the sources provided.
Software distribution comes in many
@ -1939,7 +1938,7 @@ limited to the patent claims covered by the code as licensed by the patentee.
In contrast, a GPLv2 licensee, under the doctrine of implied patent license,
is free to practice any patent claims held by the licensor that cover
``reasonably contemplated uses'' of the GPL'd code, which may very well
include creation and distribution of derivative works since the GPL's terms,
include creation and distribution of modified works since the GPL's terms,
under which the patented code is distributed, expressly permits such activity.
@ -1979,14 +1978,14 @@ For example, if Company \compA{} has a patent on advanced Web browsing, but
also licenses a Web browsing program under the GPLv2, then it
cannot assert the patent against any party based on that party's use of
Company \compA{}'s GPL'ed Web browsing software program, or on that party's
creation and use of derivative works of that GPL'ed program. However, if a
creation and use of modified versions of that GPL'ed program. However, if a
party uses that program without
complying with the GPLv2, then Company \compA{} can assert both copyright
infringement claims against the non-GPLv2-compliant party and
infringement of the patent, because the implied patent license only
extends to use of the software in accordance with the GPLv2. Further, if
Company \compB{} distributes a competitive advanced Web browsing program
that is not a derivative work of Company \compA{}'s GPL'd Web browsing software
that is not a modified version of Company \compA{}'s GPL'd Web browsing software
program, Company \compA{} is free to assert its patent against any user or
distributor of that product. It is irrelevant whether Company \compB's
program is also distributed under the GPLv2, as Company \compB{} can not grant
@ -3805,12 +3804,11 @@ Terms to Your New Programs'' to just the bare essentials.
\chapter{The Lesser GPL}
As we have seen in our consideration of the GPL, its text is specifically
designed to cover all possible derivative works under copyright law. Our
goal in designing the GPL was to make sure that any derivative work of GPL'd
software was itself released under the GPL when distributed. Reaching as far
as copyright law will allow is the most direct way to reach that goal.
designed to cover all possible derivative, modified and/or combined works under copyright law. Our
goal in designing the GPL was to maximize its use of the controls of
copyright law to maximize the number of works that were covered by GPL.
However, while the strategic goal is to bring as much Free Software
However, while the strategic goal of software freedom is to bring as much Free Software
into the world as possible, particular tactical considerations
regarding software freedom dictate different means. Extending the
copyleft effect as far as copyright law allows is not always the most
@ -3851,11 +3849,11 @@ the GNU/Linux platform be released under the GPL\@.
Since all applications on a Unix-like system depend on the C library, it
means that they must link with that library to function on the system. In
other words, all applications running on a Unix-like system must be
combined with the C library to form a new whole derivative work that is
combined with the C library to form a new whole work that is
composed of the original application and the C library. Thus, if glibc
were GPL'd, each and every application distributed for use on GNU/Linux
would also need to be GPL'd, since to even function, such applications
would need to be combined into larger derivative works by linking with
would need to be combined into larger works by linking with
glibc.
At first glance, such an outcome seems like a windfall for Free Software
@ -3947,12 +3945,10 @@ same legal mechanisms and are enforced precisely the same way.
We strike a difference only in the early portions of the license.
Namely, in the LGPL we go into deeper detail of granting various permissions to
create derivative works, so the re-distributors can make
some proprietary derivatives. Since we simply do not allow the
license to stretch as far as copyright law does regarding what
derivative works must be relicensed under the same terms, we must go
further to explain which derivative works we will allow to be
proprietary. Thus, we'll see that the front matter of the LGPL is a
create certain types of combinations, modifications and derivations.
The LGPL does not stretch the requirements as far as copyright law does regarding what
works must be relicensed under the same terms. Therefore, LGPL must
in detail explain which works can be proprietary. Thus, we'll see that the front matter of the LGPL is a
bit more wordy and detailed with regards to the permissions granted to
those who modify or redistribute the software.
@ -3992,37 +3988,37 @@ or modified Free version or to make their own modifications, even if they
cannot modify the primary software program that links to that library.
Finally, the preamble introduces two terms used throughout the license to
clarify between the different types of derivative works: ``works that use
clarify between the different types of combined works: ``works that use
the library,'' and ``works based on the library.'' Unlike the GPL, the LGPL must
draw some lines regarding derivative works. We do this here in this
draw some lines regarding permissibly proprietary combined works. We do this here in this
license because we specifically seek to liberalize the rights afforded to
those who make derivative works. In the GPL, we reach as far as copyright law
those who make combined works. In the GPL, we reach as far as copyright law
allows. In the LGPL, we want to draw a line that allows some derivative works
copyright law would otherwise prohibit if the copyright holder exercised
his full permitted controls over the work.
\section{An Application: A Work that Uses the Library}
In the effort to allow certain proprietary derivative works and prohibit
others, the LGPL distinguishes between two classes of derivative works:
In the effort to allow certain proprietary works and prohibit
others, the LGPL distinguishes between two classes of works:
``works based on the library,'' and ``works that use the library.'' The
distinction is drawn on the bright line of binary (or runtime) derivative
works and source code derivatives. We will first consider the definition
distinction is drawn on the bright line of binary (or runtime) combined
works and modified versions of source code. We will first consider the definition
of a ``work that uses the library,'' which is set forth in LGPLv2.1~\S5.
We noted in our discussion of GPLv2~\S3 (discussed in
Section~\ref{GPLv2s3} of this document) that binary programs when
compiled and linked with GPL'd software are derivative works of that GPL'd
software. This includes both linking that happens at compile-time (when
compiled and linked with GPL'd software are covered as a whole by GPL\@.
This includes both linking that happens at compile-time (when
the binary is created) or at runtime (when the binary -- including library
and main program both -- is loaded into memory by the user). In GPL,
binary derivative works are controlled by the terms of the license (in GPLv2~\S3),
and distributors of such binary derivatives must release full
binary works are controlled by the terms of the license (in GPLv2~\S3),
and distributors of such binary works must release full
corresponding source\@.
In the case of LGPL, these are precisely the types of derivative works
we wish to permit. This scenario, defined in LGPL as ``a work that uses
the library,'' works as follows:
The LGPL, by contrast, allows partial proprietarization of such binary works.
This scenario, defined in LGPL as ``a work that uses the library,'' works as
follows:
\newcommand{\workl}{$\mathcal{L}$}
\newcommand{\lplusi}{$\mathcal{L\!\!+\!\!I}$}
@ -4040,10 +4036,10 @@ the library,'' works as follows:
\item The new copyright holder, for her software to be useful, realizes
that it cannot run without combining \worki{} and \workl{}.
Specifically, when she creates a running binary program, that running
binary must be a derivative work, called \lplusi{}, that the user can
binary must be a combined work, called \lplusi{}, that the user can
run.
\item Since \lplusi{} is a derivative work of both \worki{} and \workl{},
\item Since \lplusi{} is a based on both \worki{} and \workl{},
the license of \workl{} (the LGPL) can put restrictions on the license
of \lplusi{}. In fact, this is what the LGPL does.
@ -4064,7 +4060,7 @@ In addition, the only reason that LGPLv2.1 has any control over the licensing
of a ``work that uses the library'' is for the same reason that GPL has
some say over separate and independent works. Namely, such controls exist
because the {\em binary combination\/} (\lplusi{}) that must be created to
make the separate work (\worki{}) at all useful is a derivative work of
make the separate work (\worki{}) at all useful is a work based on
the LGPLv2.1'd software (\workl{}).
Thus, a two-question test that will help indicate if a particular work is
@ -4076,8 +4072,8 @@ a ``work that uses the library'' under LGPLv2.1 is as follows:
completely independent work that stands by itself, and includes no
source code from \workl{}?
\item When the source code is compiled, does it create a derivative work
by combining with \workl{}, either by static (compile-time) or dynamic
\item When the source code is compiled, does it combine into a single work
with \workl{}, either by static (compile-time) or dynamic
(runtime) linking, to create a new binary work, \lplusi{}?
\end{enumerate}
@ -4093,24 +4089,26 @@ warranted.
\section{The Library, and Works Based On It}
In short, a ``work based on the library'' could be defined as any
derivative work of LGPL'd software that cannot otherwise fit the
work based on the LGPL'd software that cannot otherwise fit the
definition of a ``work that uses the library.'' A ``work based on the
library'' extends the full width and depth of copyright derivative works,
in the same sense that the GPL does.
library'' extends the full width and depth of derivative, combined and/or
modified works under copyright law, in the same sense that the GPL does.
Most typically, one creates a ``work based on the library'' by directly
modifying the source of the library. Such a work could also be created by
tightly integrating new software with the library. The lines are no doubt
fuzzy, just as they are with GPL'd works, since copyright law gives us no
litmus test for derivative works of a software program.
litmus test for determining if a given work is a derivative or otherwise a
modified version of another software program.
Thus, the test to use when considering whether something is a ``work
based on the library'' is as follows:
\begin{enumerate}
\item Is the new work, when in source form, a derivative work under
copyright law of the LGPL'd work?
\item Is the new work, when in source form, a derivative and/or modified
work of, and/or a combined work with the LGPL'd work under
copyright law?
\item Is there no way in which the new work fits the definition of a
``work that uses the library''?
@ -4124,9 +4122,9 @@ based on the library'' and a ``work that uses the library.''
In our years of work with the LGPLv2.1, however, we have never seen a work
of software that was not clearly one or the other; the line is quite
bright. At times, though, we have seen cases where a derivative work
appeared in some ways to be a work that used the library and in other
ways a work based on the library. We overcame this problem by
bright. At times, though, we have seen cases where a particularly large work
in some ways seemed to be both to both a work that used the library and
a work based on the library. We overcame this problem by
dividing the work into smaller subunits. It was soon discovered that
what we actually had were three distinct components: the original
LGPL'd work, a specific set of works that used that library, and a
@ -4156,22 +4154,23 @@ when those modules are {\em linked\/} into a full binary executable.
As we have discussed, the assembly of modules can happen at compile-time
or at runtime. Legally, there is no distinction between the two --- both
create a derivative work by copying and combining portions of one work and
create a modified version of the work by copying and combining portions of one work and
mixing them with another. However, under LGPL, there is a case in the
compilation process where the legal implications are different.
Specifically, while we know that a ``work that uses the library'' is one
whose final binary is a derivative work, but whose source is not, there
To understand this phenomenon, we consider that a ``work that uses the
library'' is typically one whose final binary is a work based on the Program,
but whose source is not. However, sometimes, there
are cases where the object code --- that intermediate step between source
and final binary --- is a derivative work created by copying verbatim code
and final binary --- is a work created by copying and modifying code
from the LGPL'd software.
For efficiency, when a compiler turns source code into object code, it
sometimes places literal portions of the copyrighted library code into the
object code for an otherwise separate independent work. In the normal
scenario, the derivative would not be created until final assembly and
scenario, the final combined work would not be created until final assembly and
linking of the executable occurred. However, when the compiler does this
efficiency optimization, at the intermediate object code step, a
derivative work is created.
combined work is created.
LGPLv2.1~\S5\P4 is designed to handle this specific case. The intent of
the license is clearly that simply compiling software to ``make use'' of
@ -4265,7 +4264,7 @@ conditions:
\item Binary distribution of the library only, covered in LGPLv2.1~\S4,
which is effectively equivalent to LGPLv2.1~\S3
\item Creating aggregates of libraries that are not derivative works of
\item Creating aggregates of libraries that are separate and independent works from
each other, and distributing them as a unit (in LGPLv2.1~\S7)
\end{itemize}
@ -4392,9 +4391,12 @@ much. The glib answer is that by releasing the whole product as Free
Software, it is always easy to comply with the GPL. However,
admittedly to the dismay of FSF, many modern and complex software
systems are built using both proprietary and GPL'd components that are
not legally derivative works of each other. Sometimes, it is easier simply to
clearly and legally separate and independent works, merely aggregated
together on the same device.
However, it's sometimes is easier, quicker, and cheaper to simply to
improve existing GPL'd application than to start from scratch. In
exchange for that benefit, the license requires that the modifier gives
exchange for this amazing benefit, the license requires that the modifier gives
back to the commons that made the work easier in the first place. It is a
reasonable trade-off and a way to help build a better world while also
making a profit.