Re: GPL and "free" software

[owinebar@ezinfo.ucs.indiana.edu (Lynn Winebarger)]

In article <7g8fid$c7c$1@nnrp1.dejanews.com>,
Robert Dewar  <robert_dewar@my-dejanews.com> wrote:
>In article <7g7tlc$j5g$1@jetsam.uits.indiana.edu>,
>  owinebar@ezinfo.ucs.indiana.edu (Lynn Winebarger) wrote:
>> Well, I think it would be legal for a company to
>> distribute patches (under a stricter license even), as
>> long as they did not also distribute the original work.
>> Not that I would want to encourage that behaviour.
>>
>> Lynn
>
>
>Lynn, you are expressing legal opinions here without
>giving a basis for the opinion. As I noted in a previous
   Well, I guess it boils down to this question: Can I publish a book
that describes how to physically modify a second book to create a third
book?  While the 3rd book is clearly a derived work, it is not so clear
that the 1st would be - it could be considered fair use.  Indeed, if you
look at the question of whether it hurts the market for the first, you
could only say "no", since performing the modifications requires having
the 2nd book.  There are other considerations, too, of course.  It would
depend on the particular patch file distributed, I think.
   But like I said, I think distributing such a patch would be grounds
for revoking the GPL on the original source, just not a copyright
infringement.  The effect would be that the purchaser would have to
obtain the 2 from different sources - it's not exactly a goldmine.
(The revoking would be because distributing them both _would_ constitute
a derived work - in my opinion, of course).

>post, Richard Stallman *strongly* disagrees with this
>assessment. He takes what seems to be the quite reasonable
>position that a patch file which only has meaning with
>regard to a work A is from a legal point of view a derived
>work, which would be protected. Note that the integrity
>of the GPL depends on this position, so this is not a
>trivial point. 
    Well, once again, it would depend on the particular patch file. 
For example, you can publish a topical index to a book, and that is not
a derived work, but a fair use.  (from "The Fair Use Privilege in
Copyright Law" by William F. Patry).  Or how about a book of annotations
to a text?  That would qualify as "comment" under the fair use doctrine,
and I think a patch file (particularly a source patch file) could
reasonably be characterized this way.
    I also think RMS's stance on the use of function calls from a GPL'ed
shared library is unreasonable (though it's not unreasonable when using
a static linker).  As far as I can see, writing a function call to a
shared library is equivalent to a reference to a scientific paper.
Static linking is equivalent to including it as an appendix.  The second
is clearly an infringement, and the first is not.  

>It has not been specifically adjudicated
>in court, but you should be aware that if you take action
>to follow your legal opinion, you might trigger a court
>to make the decision :-)

  Don't worry, that's not my intention.  I don't have any intention of
writing non-free software (I don't really intend to write non-GPL'ed
software, but I might relent on that in particular circumstances, as
long as the result is still free).

Lynn