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Re: using GPL api to be used in a properietary software

From: Alexander Terekhov
Subject: Re: using GPL api to be used in a properietary software
Date: Tue, 15 Mar 2005 10:38:42 +0100

Martin Dickopp wrote:
>                                  101 USC 17 defines a derivative work as
> "a work based upon one or more preexisting works." 

... in which a work may be recast, transformed, or adapted."

is the governing part of the US definition because all works are 
based upon one or more preexisting works in a metaphysical sense.

Paramount Pictures Corp. v.
Video Broadcasting Systems, Inc

The case comes before the court on the plaintiff's motion for a 
preliminary injunction.


Plaintiff seeks to enjoin generally defendants from altering Paramount 
videocassettes by the addition of unauthorized advertisements, from 
creating and distributing derivative works from works in which 
plaintiff owns or is the exclusive licensee of the copyright, from 
interfering with plaintiff's prospective contractual relations for 
authorized advertisements, and from "shipping, delivering, holding for 
sale, distributing, returning, transferring, or otherwise moving or 
disposing of in any manner" videocassettes protected by plaintiff's 
copyright which have been altered by defendants prior to rental or 


Plaintiff next claims that by adding the advertisements to the 
videocassette the defendants have created unauthorized derivative 
works. The Copyright Act defines a derivative work as a work "based 
upon one or more preexisting works, such as a translation, musical 
arrangement, dramatization, fictionalization, motion picture version, 
sound recording, art reproduction, abridgment, condensation, or any 
other form in which a work may be recast, transformed, or adapted." 

A work will be considered a derivative work only if it would be 
considered an infringing work if the material which it has derived 
from a preexisting work had been taken without the consent of a 
copyright proprietor of such preexisting work. The plaintiff has 
not presented any authority to support the conclusion that the mere 
addition of a commercial to the front of a videocassette recasts, 
transforms, or adapts the motion picture into what could represent 
an "original work of authorship." 

[... silly opinions in Mirage and Midway ignored ...]

While defendants' advertisement is an original work, the court does 
not recognize the addition of it to a videocassette in any way 
recasting, transforming or adapting the motion picture. The result 
is not a new version of the motion picture. 

Plaintiff's final copyright claim is the unlawful distribution of 
mutilated versions or derivative works. This claim depends upon the 
success of either of the prior two claims regarding mutilation of a 
copyrighted work or the preparation of a derivative work. Since the 
court has found little likelihood of success on both of these claims, 
the distribution claim also fails to carry the day. Furthermore, in 
the absence of a derivative work [READ: in the absence of derivative 
work prepared without permission], the plaintiff's distribution claim 
is barred by the first sale doctrine which provides that when a 
copyright owner parts with title to a particular copy of his 
copyrighted work, he divests himself of his exclusive right to vend 
that particular copy. Plaintiff has not shown a substantial 
likelihood of success on any of its copyright claims. 

Plaintiff's motion for a preliminary injunction is denied.

Literary works (computer programs) are no different in this respect.

You only have to be "the owner of a particular copy or phonorecord 
lawfully made." 17 USC 109. A copy is "lawfully made" if it is made 
by the copyright owner, made with the authorization of the copyright 
owner (copies made under exceptions to the copyright owner's 
exclusive rights aside of a moment).

The test for first sale is not whether Video Broadcasting Systems, 
Inc. "acquired preexisting videocasettes" but whether the copies VBS 
owned were lawfully made (e.g. with the authorization of the 
copyright owner). And all copies of GPL'd works are "lawfully made"
thanks to the unilateral permission to reproduce.


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