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

[Alexander Terekhov]

< for the sake of linking-back in future >

Isaac wrote:
> 
> On Mon, 14 Mar 2005 12:12:29 +0100, Martin Dickopp
> <expires-2005-04-30@zero-based.org> wrote:
> >
> > That depends on how the program has been created and other details. If a
> > program uses the ISO-standardized C library API, and uses no components
> > of a particular C library while it is being created, then a derivative
> > work of the program and a particular C library is created the moment the
> > program is run (and therefore linked with the library). But I can also
> > imagine different circumstances under which a derivative work is already
> > created when the programm is written.
> 
> Taking two works and pasting them together does not create a derivative
> work, but instead creates some kind of compilation, most likely
> a collective work.  If there is no recasting, transforming or adaptation
> of the original work, then I don't think the result fits the statutory
> definition.
> 
> However a collective work is separate combinations collected into a
> whole which seems to accurately describe linking to a library for at
> least some linking technologies.
> 
> For static linked works, the diference between a derivative work and
> a collective work is usually meaningless because distribution requires the
> distributing the library.  But the difference is critical if the two
> joined works are to be distributed separately.

Distribution under "first sale" aside for a moment, here's a nice
explanation highlighting some other differences regarding 
compilations and derivative works.

----
HOUSE REPORT NO. 94-1476

Section 103 complements section 102: A compilation or derivative 
work is copyrightable if it represents an ''original work of 
authorship'' and falls within one or more of the categories listed 
in section 102. Read together, the two sections make plain that 
the criteria of copyrightable subject matter stated in section 102 
apply with full force to works that are entirely original and to 
those containing preexisting material. Section 103(b) is also 
intended to define, more sharply and clearly than does section 7 
of the present law (section 7 of former title 17), the important 
interrelationship and correlation between protection of preexisting 
and of ''new'' material in a particular work. The most important 
point here is one that is commonly misunderstood today: copyright 
in a ''new version'' covers only the material added by the later 
author, and has no effect one way or the other on the copyright or 
public domain status of the preexisting material.

Between them the terms ''compilations'' and ''derivative works'' 
which are defined in section 101 comprehend every copyrightable 
work that employs preexisting material or data of any kind. There 
is necessarily some overlapping between the two, but they basically 
represent different concepts. A ''compilation'' results from a 
process of selecting, bringing together, organizing, and arranging 
previously existing material of all kinds, regardless of whether 
the individual items in the material have been or ever could have 
been subject to copyright. A ''derivative work,'' on the other 
hand, requires a process of recasting, transforming, or adapting 
''one or more preexisting works''; the ''preexisting work'' must 
come within the general subject matter of copyright set forth in 
section 102, regardless of whether it is or was ever copyrighted.

The second part of the sentence that makes up section 103(a) 
deals with the status of a compilation or derivative work 
unlawfully employing preexisting copyrighted material. In 
providing that protection does not extend to ''any part of the 
work in which such material has been used unlawfully,'' the bill 
prevents an infringer from benefiting, through copyright 
protection, from committing an unlawful act, but preserves 
protection for those parts of the work that do not employ the 
preexisting work. Thus, an unauthorized translation of a novel 
could not be copyrighted at all, but the owner of copyright in 
an anthology of poetry could sue someone who infringed the whole 
anthology, even though the infringer proves that publication of 
one of the poems was unauthorized. 
----

regards,
alexander.