What’s a Derivative Work? Depends Who You Ask

When it comes to creative works, such as a drawing or a piece of writing or music, the law is pretty clear about what is a derivative work and what isn’t. Not so much with software.

If the software is open source — that is, licensed under the GNU General Public License or a similar license — the waters get even murkier.

Basically, a derivative work is made when you take someone else’s copyrighted work — such as an image or set of notes — and make it a part of another work. A simple concept, really, and the legal system’s stance is more or less clear: You’ve got to get permission from the copyright holder in order to do it.

If you use someone else’s code in your software, the same principle applies — mostly.

Definition Needed

Jason Wacha, general counsel for MontaVista Software, recently took on the question of what is a derivative work of open source software in a webinar.

“The answer is I don’t know — and the fact is most people don’t know,” Wacha said. “The ‘derivative works’ definition hasn’t been that well defined. There are 12 U.S. circuits, and each has its own definition — some have none. That’s why I say, ‘look at what the community is saying.'”

In other words, if the open source community tolerates the kind of activity you’re undertaking, you should be OK. However, that’s not exactly comfortable legal ground if you’re in the software business.

That’s why we need a test case, Wacha said.

“Except for SCO, there really have been no claims for illegal derivation in the open source world,” Wacha said. We all know how that turned out. The problem for SCO was simply that it didn’t have reality on its side. It couldn’t defend Unix as its intellectual property because it wasn’t, and now it’s going to end up owing Novell a lot of money it’ll never be able to pay.

Free, With Restrictions

Most open source licenses allow — some would even say encourage — derivation. That’s how this whole open source thing works, isn’t it?

Even if the software is open source, however, you still have to comply with the license. “Software is software. You can’t just pull code and do what you want with it,” Wacha said.

For example, the GNU GPL mandates that those who use software covered by its license make available the source code. Several companies are discovering the consequences of not complying with this provision of the law since the Software Freedom Law Center went on a lawsuit blitz in the past few months.

Working on behalf of the BusyBox developers Erik Andersen and Rob Landley, the SFLC has filed four lawsuits accusing companies of distributing products containing the BusyBox software without making the source code available.

Still Not Clear

Even so, the BusyBox cases — for all of their hype as the first lawsuits brought in the U.S. under the GNU GPL — aren’t about whether someone illegally copied the code and used it for their own purposes. They were simply about publishing the code, and that means that even these high-profile cases don’t give us a clearer picture of the courts’ tolerance for derivative works in the open source world.

“I’d like to see a copyright court address this,” Wacha said. Unfortunately, “that’s not what these lawsuits say. They’re not suing over the whole Linux kernel. They’re suing on behalf of the copyright owners. They basically say, ‘you distributed GPL code, so please comply with the license.'”

Two have since settled — Xterasys and Monsoon Multimedia — and cases are pending against Verizon and High Gain Antennas. Those who settled have agreed to make the source code available and pay a penalty to the BusyBox developers.

While these developments are, in essence, good for open source software, the cynic in me says these guys are simply inventing a new business model for open source: Sue those who violate the GPL and make them pay for what otherwise would be available at no charge.

I’m not so sure Richard Stallman would approve.

Click here to e-mail Jason Z. Cohen.

1 Comment

  • To the best of my understanding, "For example, the GNU GPL Latest News about GPL mandates that those who use software covered by its license make available the source code." is not a correct statement.
    The GPL does not demand anything of that sort for _using_ the software, not even when someone does modify the source code (loosely = creating a derivative work). However it does demand the publication of the source for _distributing_ the software. Further clarification can be found at the GPL FAQ

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