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Author Topic: Distributing instructions to create a derived work, instead of the derived work  (Read 1243 times)


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....instead of the derived work itself.

My question relates to the GNU General Public License version 3, in this case, but is rather simple in its essence.

By copyright law apparently derived works or the creation thereof (certainly distribution thereof) may require permission from the original copyright owner.

In GPL and the software world, this permission is often automatically granted provided you comply with license terms.

These license terms state that any derived work must fall under the same license as the orignal, namely GPL (in this case).

Now the question is: do instructions to create a derived work, from some original, also count as a derived work?

The purpose is to create derived works at another location rather than a central one; if only instructions are distributed; then users create the actual "derived work" at their own location at their own behest (also called assembly) at which point no actual derived work is ever actually copied or conveyed or propagated in actual form.

It might be considered equivalent to adding 3 new chapters to an existing book. Suppose you were to publish 3 chapters to augment an existing book by a different author. People would consider that not so nice, but in actual effect:

Would those three chapters need to comply with copyright law, as saying that they need permission from the original author/owner?

The software question is almost exactly equivalent. Instead of publishing just 3 chapters, you might also publish any form of equivalent material and instructions on how to include them in the original product (by that different author) which then comes down to the essence of a software patch system.

The Linux tools "diff" and "patch" form the core of that patch system in the Linux/Unix world.

So the question is really simple, does added material, or instructions on how to integrate added material, fall under the copyright protection of the original author, and would hence need permission?

I mean maybe it would be nice to ask for permission. It could be hypothetical but all the same (in general I'm a person who likes to play it nice provided the terms of the other person are agreeable) (but maybe that applies to everyone)) this situation can arise in whatever form.

And when it does arise it would be helpful if you could tell those disagreeable people that what they are claiming their license does, is not actually in accordance or concord with actual copyright law, if that were the case.

When I write this question it feels like I am intending to abuse the product of another. In actual practice it is not like that. It falls into two broad categories:

  • 1. A product that is already freely available free of charge, and you want to apply and distribute some additions or customizations, but you want to maintain some form of identity, ownership, or credit, and hence also, the right to determine its future, so to speak, on your modifications such that you can call them your own. (Minor modification).
  • A product that is rather completely new, but might integrate existing components, or small parts of existing components, only as smaller building blocks, and those smaller components fall under e.g. GPL, requiring your bigger product to also be GPL.


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In the first case, creating some custom solutions in an already entirely open ecosystem is not really in disagreement with the spirit of the ecosystem. Regardless, whereas your modifications may be more specific and hence more something you want to maintain ownership of "MY modifications" the license often requires you to forfeit this kind of ownership and would require you to allow the "upstream" developers to integrate all of your custom additions or changes, as they see fit; and in this situation you do not really want to do that, if those upstream developers had been rather disagreeable about your proposed changes in the first place.

The spirit of open source is that you can change anything you want. In actual reality they often do not want to cooperate when you want to do something they do not like.

The end result of that is that you want to make changes or additions, that you can consider your own. After all, if they have been bitches to you all the time, and all along, you are not very happy if they then steal your work the moment it does amount to something good and nice; but which you had to do without their help and support, and without their cooperation, but often with their character assaults and attempts to thwart you.

However the intent of the GPL is that any modifications you make cannot remain private. More so, it says that those modifications must be made available to anyone. However, the modifications that the license speaks of, are derived works or modified works which implies a "new version" of the original work.

A software patch, however, is not actually a new "version" of the original work, it is a set of instructions to arrive at a new version.

The question then becomes: can I freely (or with my own terms) distribute such instructions (patches) under a different license?

It is merely a question of where the patches will be assembled; applied. If done centrally, it is covered under copyright. If done decentrally, it may not, since the derived work will then never get distributed in complete form.

The only thing you will distribute, are your own additions and modifications, and as such an installer package for your product would typically collect parts from all over the internet to be assembled locally on your (or the end user's) own computer.

People may not like that. But I think in essence, in its pure form, there should not be anything against that.

The question at this point however is whether technically, these patches would fall under the copyright of the existing product, or, whether you'd need permission from those original owners/authors, for using their software in this way. Which is essentially the same thing, but there is a legal dimension to it, and a moral one.

And although I might feel that the moral dimension would require such thing, the legal one, currently, may not.


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  • David H. Madden
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A couple of quickie points ... I use the "distribution of diff" idea in my patent applications, so I'm familiar with the concept, though in a different context.

If you're distributing context diffs, those include a few lines of the original work, which is used by the patch program to find the location to modify, even if it has moved slightly due to other patches.  So at the very least, you have a potential copyright problem in those lines.

Second, I think I recall a case where some bible-thumper group was distributing editing timecodes for movies, which could (in combination with suitable software or hardware) bleep out all the naughty or blasphemous words in the movie, or skip over the sex scenes.  (Or skip _to_ the sex scenes, I guess, if you were into that.)  Anyway, I don't know how that case turned out, but if you could find it, you might get some ideas for how a court would analyze the "not directly infringing, just providing instructions for somebody else to do something that may or may not be infringing if they decide independently and without our control to follow those instructions."

Mersenne Law
Patents, Trademarks & Copyrights for Small Biz & Startups
California, Oregon & USPTO


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