else. Regulation that operated without explaining its rule.

We could imagine this society, but we could not imagine calling it

``free.''  Whether or not the incentives in such a society would be better

or more efficiently allocated, such a society could not be known as free.

The ideals of freedom, of life within a free society, demand more than

efficient application.  Instead, openness and transparency are the

constraints within which a legal system gets built, not options to be

added if convenient to the leaders.  Life governed by software code should

be no less.

Code writing is not litigation.  It is better, richer, more

productive.  But the law is an obvious instance of how creativity and

incentives do not depend upon perfect control over the products

created.  Like jazz, or novels, or architecture, the law gets built

upon the work that went before. This adding and changing is what

creativity always is.  And a free society is one that assures that its

most important resources remain free in just this sense.\footnote{This

quotation is Copyright \copyright{} 2002, Lawrence Lessig. It is

licensed under the terms of

\href{http://creativecommons.org/licenses/by/1.0/}{the ``Attribution

License'' version 1.0} or any later version as published by Creative

Commons.}

\end{quotation}

In essence, lawyers are paid to service the shared commons of legal

infrastructure.  Few citizens defend themselves in court or write their

own briefs (even though they are legally permitted to do so) because

everyone would prefer to have an expert do that job.

The Free Software economy is a market ripe for experts.  It

functions similarly to other well established professional fields like the

law. The GPL, in turn, serves as the legal scaffolding that permits the

creation of this vibrant commercial and noncommercial Free Software

economy.

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

\chapter{A Tale of Two Copyleft Licenses}

\label{tale-of-two-copylefts}

While determining the proper methodology and criteria to yield an accurate

count remains difficult, the GPL is generally considered one of the most

widely used Free Software licenses.  For most of its history --- for 16 years

from June 1991 to June 2007 --- there was really only one version of the GPL,

version 2.

However, the GPL had both earlier versions before version 2, and, more well

known, a revision to version 3. 

\section{Historical Motivations for the General Public License}

The earliest license to grant software freedom was likely the Berkeley

Software Distribution (``BSD'') license.  This license is typical of what are

often called lax, highly permissive licenses.  Not unlike software in the

public domain, these non-copyleft licenses (usually) grant software freedom

to users, but they do not go to any effort to uphold that software freedom

for users.  The so-called ``downstream'' (those who receive the software and

then build new things based on that software) can restrict the software and

distribute further.

The GNU's Not Unix (``GNU'') project, which Richard M.~Stallman (``RMS'')

founded in 1984 to make a complete Unix-compatible operating system

implementation that assured software freedom for all.  However, RMS saw that

using a license that gave but did not assure software freedom would be

counter to the goals of the GNU project.  RMS invented ``copyleft'' as an

answer to that problem, and began using various copyleft licenses for the

early GNU project programs\footnote{RMS writes more fully about this topic in

  his essay entitled simply

  \href{http://www.gnu.org/gnu/thegnuproject.html}{\textit{The GNU Project}}.

    For those who want to hear the story in his own voice,

    \href{http://audio-video.gnu.org/audio/}{speech recordings} of his talk,

    \textit{The Free Software Movement and the GNU/Linux Operating System}

    are also widely available}.

\section{Proto-GPLs And Their Impact}

%FIXME-LATER: bad line break:

%\href{http://www.free-soft.org/gpl_history/emacs_gpl.html}{The Emacs

%  General Public License}

The earliest copyleft licenses were specific to various GNU programs.  For

example,  The Emacs

General Public License was likely the first copyleft license ever

published.  Interesting to note that even this earliest copyleft license

contains a version of the well-known GPL copyleft clause:

\begin{quotation}

You may modify your copy or copies of GNU Emacs \ldots provided that you also

\ldots cause the whole of any work that you distribute or publish, that in

whole or in part contains or is a derivative of GNU Emacs or any part

thereof, to be licensed at no charge to all third parties on terms identical

to those contained in this License Agreement.

\end{quotation}

This simply stated clause is the fundamental innovation of copyleft.

Specifically, copyleft \textit{uses} the copyright holders' controls on

permission to modify the work to add a conditional requirement.  Namely,

downstream users may only have permission to modify  the work if they pass

along the same permissions on the modified version that came originally to

them.

These original program-specific proto-GPLs give an interesting window into

the central ideas and development of copyleft.  In particular, reviewing them

shows how the text of the GPL we know has evolved to address more of the

issues discussed earlier in \S~\ref{software-and-non-copyright}.

\section{The GNU General Public License, Version 1}

\label{GPLv1}

In January 1989, the FSF announced that the GPL had been converted into a

``subroutine'' that could be reused not just for all FSF-copyrighted

programs, but also by anyone else.  As the FSF claimed in its announcement of

the GPLv1\footnote{The announcement of GPLv1 was published in the

  \href{http://www.gnu.org/bulletins/bull6.html\#SEC8}{GNU's Bulletin, vol 1,

    number 6 dated January 1989}.  (Thanks very much to Andy Tai for his

  \href{http://www.free-soft.org/gpl_history/}{consolidation of research on

    the history of the pre-v1 GPL's}.)}:

\begin{quotation}

To make it easier to copyleft programs, we have been improving on the

legalbol architecture of the General Public License to produce a new version

that serves as a general-purpose subroutine: it can apply to any program

without modification, no matter who is publishing it.

\end{quotation}

This, like many inventive ideas, seems somewhat obvious in retrospect.  But,

the FSF had some bright people and access to good lawyers when it started.

It took almost five years from the first copyleft licenses to get to a

generalized, reusable GPLv1.  In the context and mindset of the 1980s, this

is not surprising.  The idea of reusable licensing infrastructure was not

only uncommon, it was virtually nonexistent!  Even the early BSD licenses

were simply copied and rewritten slightly for each new use\footnote{It

  remains an interesting accident of history that the early BSD problematic

  ``advertising clause'' (discussion of which is somewhat beyond the scope of

  this tutorial) lives on into current day, simply because while the

  University of California at Berkeley gave unilateral permission to remove

  the clause from \textit{its} copyrighted works, others who adapted the BSD

  license with their own names in place of UC-Berkeley's never have.}.  The

GPLv1's innovation of reusable licensing infrastructure, an obvious fact

today, was indeed a novel invention for its day\footnote{We're all just

  grateful that the FSF also opposes business method patents, since the FSF's

  patent on a ``method for reusable licensing infrastructure'' would have

  not expired until 2006!}.

\section{The GNU General Public License, Version 2}

The GPLv2 was released two and a half years after GPLv1, and over the

following sixteen years, it became the standard for copyleft licensing until

the release of GPLv3 in 2007 (discussed in more detail in the next section).

While this tutorial does not discuss the terms of GPLv1 in detail, it is

worth noting below the three key changes that GPLv2 brought:

\begin{itemize}

\item Software patents and their danger are explicitly mentioned, inspiring

  (in part) the addition of GPLv2~\S\S5--7.  (These sections are discussed in

  detail in \S~\ref{GPLv2s5}, \S~\ref{GPLv2s6} and \S~\ref{GPLv2s7} of this

  tutorial.)

\item GPLv2~\S2's copyleft terms are expanded to more explicitly discuss the

  issue of combined works.  (GPLv2~\S2 is discussed in detail in

  \S~\ref{GPLv2s2} in this tutorial).

\item GPLv2~\S3 includes more detailed requirements, including the phrase

 ``the scripts used to control compilation and installation of the

  executable'', which is a central component of current GPLv2 enforcement.

  (GPLv2~\S3 is discussed in detail in

  \S~\ref{GPLv2s3} in this tutorial).

\end{itemize}

The next chapter discusses GPLv2 in full detail, and readers who wish to dive

into the section-by-section discussion of the GPL should jump ahead now to

that chapter.  However, the most interesting fact to note here is how GPLv2

was published with little fanfare and limited commentary.  This contrasts

greatly with the creation of GPLv3.

\section{The GNU General Public License, Version 3}

RMS began drafting GPLv2.2 in mid-2002, and FSF ran a few discussion groups

during that era about new text of that license.  However, rampant violations

of the GPL required more immediate attention of FSF's licensing staff, and as

such, much of the early 2000's was spent doing GPL enforcement

work\footnote{More on GPL enforcement is discussed in \tutorialpartsplit{a

    companion tutorial, \textit{A Practical Guide to GPL

      Compliance}}{Part~\ref{gpl-compliance-guide} of this tutorial}.}.  In

2006, FSF began in earnest drafting work for GPLv3.

The GPLv3 process began in earnest in January 2006.  It became clear that

many provisions of the GPL could benefit from modification to fit new

circumstances and to reflect what the entire community learned from

experience with version 2.  Given the scale of revision it seems proper to

approach the work through public discussion in a transparent and accessible

manner.

The GPLv3 process continued through June 2007, culminating in publication of

GPLv3 and LGPLv3 on 29 June 2007, AGPLv3 on 19 November 2007, and the GCC

Runtime Library Exception on 27 January 2009.

All told, four discussion drafts of GPLv3, two discussion drafts of LGPLv3

and two discussion drafts of AGPLv3 were published and discussed.

Ultimately, FSF remained the final arbiter and publisher of the licenses, and

RMS himself their primary author, but input was sought from many parties, and

these licenses do admittedly look and read more like legislation as a result.

Nevertheless, all of the ``v3'' group are substantially better and improved

licenses.

GPLv3 and its terms are discussed in detail in Chapter~\ref{GPLv3}.

\section{The Innovation of Optional ``Or Any Later'' Version}

An interesting fact of all GPL licenses is that there are ultimately multiple

choices for use of the license.  The FSF is the primary steward of GPL (as

discussed later in \S~\ref{GPLv2s9} and \S~\ref{GPLv3s14}).  However, those

who wish to license works under GPL are not required to automatically accept

changes made by the FSF for their own copyrighted works.

Each licensor may chose three different methods of licensing, as follows:

\begin{itemize}

\item explicitly name a single version of GPL for their work (usually

  indicated in shorthand by saying the license is ``GPLv$X$-only''), or

\item name no version of the GPL, thus they allow their downstream recipients

  to select any version of the GPL they choose (usually indicated in shorthand

  by saying the license is simply ``GPL''), or

\item name a specific version of GPL and give downstream recipients the

  option to choose that version ``or any later version as published by the

  FSF'' (usually indicated by saying the license is

  ``GPLv$X$-or-later'')\footnote{The shorthand of ``GPL$X+$'' is also popular

    for this situation.  The authors of this tutorial prefer ``-or-later''

    syntax, because it (a) mirrors the words ``or'' and ``later from the

    licensing statement, (b) the $X+$ doesn't make it abundantly clear that

    $X$ is clearly included as a license option and (c) the $+$ symbol has

    other uses in computing (such as with regular expressions) that mean

    something different.}

\end{itemize}

\label{license-compatibility-first-mentioned}

Oddly, this flexibility has received (in the opinion of the authors, undue)

criticism, primarily because of the complex and oft-debated notion of

``license compatibility'' (which is explained in detail in

\S~\ref{license-compatibility}).  Copyleft licenses are generally

incompatible with each other, because the details of how they implement

copyleft differs.  Specifically, copyleft works only because of its

requirement that downstream licensors use the \textit{same} license for

combined and modified works.  As such, software licensed under the terms of

``GPLv2-only'' cannot be combined with works licensed ``GPLv3-or-later''.

This is admittedly a frustrating outcome.

Other copyleft licenses that appeared after GPL, such

as the Creative Commons ``Share Alike'' licenses, the Eclipse Public License

and the Mozilla Public License \textbf{require} all copyright holders choosing

to use any version of those licenses to automatically accept and relicense

their copyrighted works under new versions.  Of course, Creative Commons, the

Eclipse Foundation, and the Mozilla Foundation (like the FSF) have generally

served as excellent stewards of their licenses.  Copyright holders using

those licenses seems to find it acceptable to fully delegate all future

licensing decisions for their copyrights to these organizations without a

second thought.

However, note that FSF gives herein the control of copyright holders to

decide whether or not to implicitly trust the FSF in its work of drafting

future GPL versions.  The FSF, for its part, does encourage copyright holders

to chose by default ``GPLv$X$-or-later'' (where $X$ is the most recent

version of the GPL published by the FSF).  However, the FSF \textbf{does not

  mandate} that a choice to use any GPL requires a copyright holder ceding

its authority for future licensing decisions to the FSF.  In fact, the FSF

considered this possibility for GPLv3 and chose not to do so, instead opting

for the third-party steward designation clause discussed in

Section~\ref{GPLv3s14}.

\section{Complexities of Two Simultaneously Popular Copylefts}

Obviously most GPL advocates would prefer widespread migration to GPLv3, and

many newly formed projects who seek a copyleft license tend to choose a

GPLv3-based license.  However, many existing copylefted projects continue

with GPLv2-only or GPLv2-or-later as their default license.

While GPLv3 introduces many improvements --- many of which were designed to

increase adoption by for-profit companies --- GPLv2 remains a widely used and

extremely popular license.  The GPLv2 is, no doubt, a good and useful

license.

However, unlike GPLv1 before it,

GPLv2 remains an integral part of the copyleft licensing infrastructure.  As such, those who seek to have expertise in current

topics of copyleft licensing need to study both the GPLv2 and GPLv3 family of

licenses.

Furthermore, GPLv3 is more easily understood by first studying GPLv2.

This is not only because of their chronological order, but also because much

of the discussion material available for GPLv3 tends to talk about GPLv3 in

contrast to GPLv2.  As such, a strong understanding of GPLv2 helps in

understanding most of the third-party material found regarding GPLv3.  Thus,

the following chapter begins a deep discussion of GPLv2.

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

\chapter{Running Software and Verbatim Copying}

\label{run-and-verbatim}

This chapter begins the deep discussion of the details of the terms of

GPLv2\@. In this chapter, we consider the first two sections: GPLv2 \S\S

0--2. These are the straightforward sections of the GPL that define the

simplest rights that the user receives.

\section{GPLv2~\S0: Freedom to Run}

\label{GPLv2s0}

GPLv2~\S0, the opening section of GPLv2, sets forth that copyright law governs

the work.  It specifically points out that it is the ``copyright

holder'' who decides if a work is licensed under its terms and explains

how the copyright holder might indicate this fact.

A bit more subtly, GPLv2~\S0 makes an inference that copyright law is the only

system that can restrict the software.  Specifically, it states:

\begin{quote}

Activities other than copying, distribution and modification are not

covered by this License; they are outside its scope.

\end{quote}

In essence, the license governs \emph{only} those activities, and all other

activities are unrestricted, provided that no other agreements trump GPLv2

(which they cannot; see Sections~\ref{GPLv2s6} and~\ref{GPLv2s7}).  This is

very important, because the Free Software community heavily supports

users' rights to ``fair use'' and ``unregulated use'' of copyrighted

material.  GPLv2 asserts through this clause that it supports users' rights

to fair and unregulated uses.

Fair use (called ``fair dealing'' in some jurisdictions) of copyrighted

material is an established legal doctrine that permits certain activities

regardless of whether copyright law would otherwise restrict those activities.

Discussion of the various types of fair use activity are beyond the scope of

this tutorial.  However, one important example of fair use is the right to

quote portions of the text in a larger work so as to criticize or suggest

changes.  This fair use right is commonly used on mailing lists when

discussing potential improvements or changes to Free Software.

Fair use is a doctrine established by the courts or by statute.  By

contrast, unregulated uses are those that are not covered by the statue

nor determined by a court to be covered, but are common and enjoyed by

many users.  An example of unregulated use is reading a printout of the

program's source code like an instruction book for the purpose of learning

how to be a better programmer.  The right to read something that you have

access to is and should remain unregulated and unrestricted.

\medskip

Thus, the GPLv2 protects users' fair and unregulated use rights precisely by

not attempting to cover them.  Furthermore, the GPLv2 ensures the freedom

to run specifically by stating the following:

\begin{quote}

''The act of running the Program is not restricted.''

\end{quote}

Thus, users are explicitly given the freedom to run by GPLv2~\S0.

\medskip

The bulk of GPLv2~\S0 not yet discussed gives definitions for other terms used

throughout.  The only one worth discussing in detail is ``work based on

the Program''.  The reason this definition is particularly interesting is

not for the definition itself, which is rather straightforward, but

because it clears up a common misconception about the GPL\@.

The GPL is often mistakenly criticized because it fails to give a

definition of ``derivative work'' or ``combined work''.  In fact, it would be incorrect and

problematic if the GPL attempted to define these terms.  A copyright license, in

fact, has no control over the rules of copyright themselves.  Such rules are

the domain of copyright law and the courts --- not the licenses that utilize

those systems.

Copyright law as a whole doesn't propose clear and straightforward guidelines

for identifying the derivative and/or combined works of software.  However,

no copyright license --- not even the GNU GPL --- can be blamed for this.

Legislators and court opinions must give us guidance in borderline cases.

\section{GPLv2~\S1: Verbatim Copying}

\label{GPLv2s1}

GPLv2~\S1 covers the matter of redistributing the source code of a program

exactly as it was received. This section is quite straightforward.

However, there are a few details worth noting here.

The phrase ``in any medium'' is important.  This, for example, gives the

freedom to publish a book that is the printed copy of the program's source

code.  It also allows for changes in the medium of distribution.  Some

vendors may ship Free Software on a CD, but others may place it right on

the hard drive of a pre-installed computer.  Any such redistribution media

is allowed.

Preservation of copyright notice and license notifications are mentioned

specifically in GPLv2~\S1.  These are in some ways the most important part of

the redistribution, which is why they are mentioned by name.  GPL

always strives to make it abundantly clear to anyone who receives the

software what its license is.  The goal is to make sure users know their

rights and freedoms under GPL, and to leave no reason that users might be

surprised the software is GPL'd. Thus

throughout the GPL, there are specific references to the importance of

notifying others down the distribution chain that they have rights under

GPL.

Also mentioned by name is the warranty disclaimer. Most people today do

not believe that software comes with any warranty.  Notwithstanding the

\href{http://mlis.state.md.us/2000rs/billfile/hb0019.htm}{Maryland's} and \href{http://leg1.state.va.us/cgi-bin/legp504.exe?001+ful+SB372ER}{Virginia's} UCITA bills, there are few or no implied warranties with software.

However, just to be on the safe side, GPL clearly disclaims them, and the

GPL requires re-distributors to keep the disclaimer very visible. (See

Sections~\ref{GPLv2s11} and~\ref{GPLv2s12} of this tutorial for more on GPL's

warranty disclaimers.)

Note finally that GPLv2~\S1 creates groundwork for the important defense of

commercial freedom.  GPLv2~\S1 clearly states that in the case of verbatim

copies, one may make money.  Re-distributors are fully permitted to charge

for the re-distribution of copies of Free Software. In addition, they may

provide the warranty protection that the GPL disclaims as an additional

service for a fee. (See Section~\ref{Business Models} for more discussion

on making a profit from Free Software redistribution.)

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

\chapter{Derivative Works: Statute and Case Law}

\label{derivative-works}

We digress for this chapter from our discussion of GPL's exact text to

consider the matter of derivative works --- a concept that we must

understand fully before considering GPLv2~\S\S2--3\@. The GPL, and Free

Software licensing in general, relies critically on the concept of

``derivative work'' since software that is ``independent,'' (i.e., not

``derivative'') of Free Software need not abide by the terms of the

applicable Free Software license. As much is required by \S~106 of the

Copyright Act, 17 U.S.C. \S~106 (2002), and admitted by Free Software

licenses, such as the GPL, which (as we have seen) states in GPLv2~\S0 that ``a

`work based on the Program' means either the Program or any derivative

work under copyright law.'' It is being a derivative work of Free Software

that triggers the necessity to comply with the terms of the Free Software

license under which the original work is distributed. Therefore, one is

left to ask, just what is a ``derivative work''? The answer to that

question differs depending on which court is being asked.

The analysis in this chapter sets forth the differing definitions of

derivative work by the circuit courts. The broadest and most

established definition of derivative work for software is the

abstraction, filtration, and comparison test (``the AFC test'') as

created and developed by the Second Circuit. Some circuits, including

the Ninth Circuit and the First Circuit, have either adopted narrower

versions of the AFC test or have expressly rejected the AFC test in

favor of a narrower standard. Further, several other circuits have yet

to adopt any definition of derivative work for software.

As an introductory matter, it is important to note that literal copying of

a significant portion of source code is not always sufficient to establish

that a second work is a derivative work of an original

program. Conversely, a second work can be a derivative work of an original

program even though absolutely no copying of the literal source code of

the original program has been made. This is the case because copyright

protection does not always extend to all portions of a program's code,

while, at the same time, it can extend beyond the literal code of a

program to its non-literal aspects, such as its architecture, structure,

sequence, organization, operational modules, and computer-user interface.

\section{The Copyright Act}

The copyright act is of little, if any, help in determining the definition

of a derivative work of software. However, the applicable provisions do

provide some, albeit quite cursory, guidance. Section 101 of the Copyright

Act sets forth the following definitions:

\begin{quotation}

A ``computer program'' is a set of statements or instructions to be used

directly or indirectly in a computer in order to bring about a certain

result.

A ``derivative work'' is 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 consisting of editorial

revisions, annotations, elaborations, or other modifications which, as a

whole, represent an original work of authorship, is a ``derivative work.''

\end{quotation}

These are the only provisions in the Copyright Act relevant to the

determination of what constitutes a derivative work of a computer

program. Another provision of the Copyright Act that is also relevant to

the definition of derivative work is \S~102(b), which reads as follows:

\begin{quotation}

In no case does copyright protection for an original work of authorship

extend to any idea, procedure, process, system, method of operation,

concept, principle, or discovery, regardless of the form in which it is

described, explained, illustrated, or embodied in such work.

\end{quotation}

Therefore, before a court can ask whether one program is a derivative work

of another program, it must be careful not to extend copyright protection

to any ideas, procedures, processes, systems, methods of operation,

concepts, principles, or discoveries contained in the original program. It

is the implementation of this requirement to ``strip out'' unprotectable

elements that serves as the most frequent issue over which courts

disagree.

\section{Abstraction, Filtration, Comparison Test}

As mentioned above, the AFC test for determining whether a computer

program is a derivative work of an earlier program was created by the

Second Circuit and has since been adopted in the Fifth, Tenth, and

Eleventh Circuits. Computer Associates Intl., Inc. v. Altai, Inc., 982

F.2d 693 (2nd Cir. 1992); Engineering Dynamics, Inc. v. Structural

Software, Inc., 26 F.3d 1335 (5th Cir. 1994); Kepner-Tregoe,

Inc. v. Leadership Software, Inc., 12 F.3d 527 (5th Cir. 1994); Gates

Rubber Co. v. Bando Chem. Indust., Ltd., 9 F.3d 823 (10th Cir. 1993);

Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366 (10th Cir. 1997); Bateman

v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996); and, Mitek Holdings,

Inc. v. Arce Engineering Co., Inc., 89 F.3d 1548 (11th Cir. 1996).

Under the AFC test, a court first abstracts from the original program its

constituent structural parts. Then, the court filters from those

structural parts all unprotectable portions, including incorporated ideas,

expression that is necessarily incidental to those ideas, and elements

that are taken from the public domain. Finally, the court compares any and

all remaining kernels of creative expression to the structure of the

second program to determine whether the software programs at issue are

substantially similar so as to warrant a finding that one is the

derivative work of the other.

Often, the courts that apply the AFC test will perform a quick initial

comparison between the entirety of the two programs at issue in order to

help determine whether one is a derivative work of the other. Such a

holistic comparison, although not a substitute for the full application of

the AFC test, sometimes reveals a pattern of copying that is not otherwise

obvious from the application of the AFC test when, as discussed below,

only certain components of the original program are compared to the second

program. If such a pattern is revealed by the quick initial comparison,

the court is more likely to conclude that the second work is indeed a

derivative of the original.

\subsection{Abstraction}

The first step courts perform under the AFC test is separation of the

work's ideas from its expression. In a process akin to reverse

engineering, the courts dissect the original program to isolate each level

of abstraction contained within it. Courts have stated that the

abstractions step is particularly well suited for computer programs

because it breaks down software in a way that mirrors the way it is

typically created. However, the courts have also indicated that this step

of the AFC test requires substantial guidance from experts, because it is

extremely fact and situation specific.

By way of example, one set of abstraction levels is, in descending order

of generality, as follows: the main purpose, system architecture, abstract

data types, algorithms and data structures, source code, and object

code. As this set of abstraction levels shows, during the abstraction step

of the AFC test, the literal elements of the computer program, namely the

source and object code, are defined as particular levels of

abstraction. Further, the source and object code elements of a program are

not the only elements capable of forming the basis for a finding that a

second work is a derivative of the program. In some cases, in order to

avoid a lengthy factual inquiry by the court, the owner of the copyright in

the original work will submit its own list of what it believes to be the

protected elements of the original program. In those situations, the court

will forgo performing its own abstraction, and proceed to the second step of

the AFC test.

\subsection{Filtration}

The most difficult and controversial part of the AFC test is the second

step, which entails the filtration of protectable expression contained in

the original program from any unprotectable elements nestled therein. In

determining which elements of a program are unprotectable, courts employ a

myriad of rules and procedures to sift from a program all the portions

that are not eligible for copyright protection.

First, as set forth in \S~102(b) of the Copyright Act, any and all ideas

embodied in the program are to be denied copyright protection. However,

implementing this rule is not as easy as it first appears. The courts

readily recognize the intrinsic difficulty in distinguishing between ideas

and expression and that, given the varying nature of computer programs,

doing so will be done on an ad hoc basis. The first step of the AFC test,

the abstraction, exists precisely to assist in this endeavor by helping

the court separate out all the individual elements of the program so that

they can be independently analyzed for their expressive nature.

A second rule applied by the courts in performing the filtration step of

the AFC test is the doctrine of merger, which denies copyright protection

to expression necessarily incidental to the idea being expressed. The

reasoning behind this doctrine is that when there is only one way to

express an idea, the idea and the expression merge, meaning that the

expression cannot receive copyright protection due to the bar on copyright

protection extending to ideas. In applying this doctrine, a court will ask

whether the program's use of particular code or structure is necessary for

the efficient implementation of a certain function or process. If so, then

that particular code or structure is not protected by copyright and, as a

result, it is filtered away from the remaining protectable expression.

A third rule applied by the courts in performing the filtration step of

the AFC test is the doctrine of scenes a faire, which denies copyright

protection to elements of a computer program that are dictated by external

factors. Such external factors can include:

\begin{itemize}

  \item The mechanical

specifications of the computer on which a particular program is intended

to operate

  \item Compatibility requirements of other programs with which a

program is designed to operate in conjunction

  \item Computer manufacturers'

design standards

  \item Demands of the industry being serviced, and widely accepted programming practices within the computer industry

\end{itemize}

Any code or structure of a program that was shaped predominantly in

response to these factors is filtered out and not protected by

copyright. Lastly, elements of a computer program are also to be filtered

out if they were taken from the public domain or fail to have sufficient

originality to merit copyright protection.

Portions of the source or object code of a computer program are rarely

filtered out as unprotectable elements. However, some distinct parts of

source and object code have been found unprotectable. For example,

constants, the invariable integers comprising part of formulas used to

perform calculations in a program, are unprotectable. Further, although

common errors found in two programs can provide strong evidence of

copying, they are not afforded any copyright protection over and above the

protection given to the expression containing them.

\subsection{Comparison}

The third and final step of the AFC test entails a comparison of the

original program's remaining protectable expression to a second

program. The issue will be whether any of the protected expression is

copied in the second program and, if so, what relative importance the

copied portion has with respect to the original program overall. The

ultimate inquiry is whether there is ``substantial'' similarity between

the protected elements of the original program and the potentially

derivative work. The courts admit that this process is primarily

qualitative rather than quantitative and is performed on a case-by-case

basis. In essence, the comparison is an ad hoc determination of whether

the protectable elements of the original program that are contained in the

second work are significant or important parts of the original program. If

so, then the second work is a derivative work of the first. If, however,

the amount of protectable elements copied in the second work are so small

as to be de minimis, then the second work is not a derivative work of the

original.

\section{Analytic Dissection Test}

The Ninth Circuit has adopted the analytic dissection test to determine

whether one program is a derivative work of another. Apple Computer,

Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994). The analytic

dissection test first considers whether there are substantial similarities

in both the ideas and expressions of the two works at issue. Once the

similar features are identified, analytic dissection is used to determine

whether any of those similar features are protected by copyright. This

step is the same as the filtration step in the AFC test. After identifying

the copyrightable similar features of the works, the court then decides

whether those features are entitled to ``broad'' or ``thin''

protection. ``Thin'' protection is given to non-copyrightable facts or

ideas that are combined in a way that affords copyright protection only

from their alignment and presentation, while ``broad'' protection is given

to copyrightable expression itself. Depending on the degree of protection

afforded, the court then sets the appropriate standard for a subjective

comparison of the works to determine whether, as a whole, they are

sufficiently similar to support a finding that one is a derivative work of

the other. ``Thin'' protection requires the second work be virtually

identical in order to be held a derivative work of an original, while

``broad'' protection requires only a ``substantial similarity.''

\section{No Protection for ``Methods of Operation''}

The First Circuit has taken the position that the AFC test is inapplicable 

when the works in question relate to unprotectable elements set forth in 

\S~102(b).  Their approach results in a much narrower definition

of derivative work for software in comparison to other circuits. Specifically, 

the

First Circuit holds that ``method of operation,'' as used in \S~102(b) of

the Copyright Act, refers to the means by which users operate

computers. Lotus Development Corp. v. Borland Int'l., Inc., 49 F.3d 807

(1st Cir. 1995).  In Lotus, the court held that a menu command

hierarchy for a computer program was uncopyrightable because it did not

merely explain and present the program's functional capabilities to the

user, but also served as a method by which the program was operated and

controlled. As a result, under the First Circuit's test, literal copying

of a menu command hierarchy, or any other ``method of operation,'' cannot

form the basis for a determination that one work is a derivative of

another.  As a result, courts in the First Circuit that apply the AFC test

do so only after applying a broad interpretation of \S~102(b) to filter out

unprotected elements. E.g., Real View, LLC v. 20-20 Technologies, Inc., 

683 F. Supp.2d 147, 154 (D. Mass. 2010).

\section{No Test Yet Adopted}

Several circuits, most notably the Fourth and Seventh, have yet to

declare their definition of derivative work and whether or not the

AFC, Analytic Dissection, or some other test best fits their

interpretation of copyright law. Therefore, uncertainty exists with

respect to determining the extent to which a software program is a

derivative work of another in those circuits. However, one may presume

that they would give deference to the AFC test since it is by far the

majority rule among those circuits that have a standard for defining

a software derivative work.

\section{Cases Applying Software Derivative Work Analysis}

In the preeminent case regarding the definition of a derivative work for

software, Computer Associates v. Altai, the plaintiff alleged that its

program, Adapter, which was used to handle the differences in operating

system calls and services, was infringed by the defendant's competitive

program, Oscar. About 30\% of Oscar was literally the same code as

that in Adapter. After the suit began, the defendant rewrote those

portions of Oscar that contained Adapter code in order to produce a new

version of Oscar that was functionally competitive with Adapter, without

having any literal copies of its code. Feeling slighted still, the

plaintiff alleged that even the second version of Oscar, despite having no

literally copied code, also infringed its copyrights. In addressing that

question, the Second Circuit promulgated the AFC test.

In abstracting the various levels of the program, the court noted a

similarity between the two programs' parameter lists and macros. However,

following the filtration step of the AFC test, only a handful of the lists

and macros were protectable under copyright law because they were either

in the public domain or required by functional demands on the

program. With respect to the handful of parameter lists and macros that

did qualify for copyright protection, after performing the comparison step

of the AFC test, it was reasonable for the district court to conclude that

they did not warrant a finding of infringement given their relatively minor

contribution to the program as a whole. Likewise, the similarity between

the organizational charts of the two programs was not substantial enough

to support a finding of infringement because they were too simple and

obvious to contain any original expression.

In the case of Oracle America v. Google, 872 F. Supp.2d 974 (N.D. Cal. 2012),

the Northern District of California District Court examined the question of 

whether the application program interfaces (APIs) associated with the Java

programming language are entitled to copyright protection.  While the 

court expressly declined to rule whether all APIs are free to use without 

license (872 F. Supp.2d 974 at 1002), the court held that the command 

structure and taxonomy of the APIs were not protectable under copyright law.

Specifically, the court characterized the command structure and taxonomy as

both a ``method of operation'' (using an approach not dissimilar to the 

First Circuit's analysis in Lotus) and a ``functional requirement for 

compatibility'' (using Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1992) and

Sony Computer Ent. v. Connectix, 203 F.3d 596 (9th Cir. 2000) as analogies),

and thus unprotectable subject matter under \S~102(b). 

Perhaps not surprisingly, there have been few other cases involving a highly

detailed software derivative work analysis. Most often, cases involve

clearer basis for decision, including frequent bad faith on the part of

the defendant or over-aggressiveness on the part of the plaintiff.  

\section{How Much Do Derivative Works Matter?}

It is certainly true that GPL intends for any work that is determined a

``derivative work'' under copyright law must be licensed as a whole under

GPL\@, as will be discussed in the following chapter.  However, as we finish

up our discussion derivative works, we must note that preparation of a

derivative work is by far not the only way to create a new work covered by

GPL\@.

In fact, while derivative work preparation is perhaps the most exciting area

of legal issues to consider, the more mundane ways to create a new work

covered by GPL are much more common.  For example, copyright statutes

generally require permission from the copyright holder to grant explicit

permission to modify a work in any manner.  As discussed in the next chapter,

also be licensed under the terms of the GPL (and only GPL:

see\S~\label{GPLv2s6} in this tutorial).  Determining whether software was

modified is a substantially easier analysis than the derivative work

discussions and considerations in this chapter.

The question of derivative works, when and how they are made, is undoubtedly

an essential discussion in the interpretation and consideration of copyleft.

That is why this chapter was included in this tutorial.  However, as we

return from this digression and resume discussion of the detailed text of the

GPLv2, we must gain a sense of perspective: most GPL questions center around

questions of modification and distribution, not preparation of derivative

works.  Derivative work preparation is ultimately a small subset of the types

of modified versions of the software a developer might create, thus, while an

excessive focus on derivative works indulges us in the more exciting areas of

copyleft, we must keep a sense of perspective regarding their relative

importance.

%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%

\chapter{Modified Source and Binary Distribution}

\label{source-and-binary}

In this chapter, we discuss the two core sections that define the rights

and obligations for those who modify, improve, and/or redistribute GPL'd

software. These sections, GPLv2~\S\S2--3, define the central core rights and

requirements of GPLv2\@.

\section{GPLv2~\S2: Share and Share Alike}

\label{GPLv2s2}

For many, this is where the ``magic'' happens that defends software

freedom upon redistribution.  GPLv2~\S2 is the only place in GPLv2

that governs the modification controls of copyright law.  If users

distribute modified versions a GPLv2'd program, they must follow the terms of GPLv2~\S2 in making

those changes.  Thus, this sections ensures that the body of GPL'd software, as it

continues and develops, remains Free as in freedom.

To achieve that goal, GPLv2~\S2 first sets forth that the rights of

redistribution of modified versions are the same as those for verbatim

copying, as presented in GPLv2~\S1.  Therefore, the details of charging money,

keeping copyright notices intact, and other GPLv2~\S1 provisions are intact

here as well.  However, there are three additional requirements.

The first (GPLv2~\S2(a)) requires that modified files carry ``prominent

notices'' explaining what changes were made and the date of such

changes. This section does not prescribe some specific way of

marking changes nor does it control the process of how changes are made.

Primarily, GPLv2~\S2(a) seeks to ensure that those receiving modified

versions know the history of changes to the software.  For some users,

it is important to know that they are using the standard version of

program, because while there are many advantages to using a fork,

there are a few disadvantages.  Users should be informed about the

historical context of the software version they use, so that they can

make proper support choices.  Finally, GPLv2~\S2(a) serves an academic

purpose --- ensuring that future developers can use a diachronic

approach to understand the software.

\medskip

The second requirement (GPLv2~\S2(b)) contains the four short lines that embody

the legal details of ``share and share alike''.  These 46 words are

considered by some to be the most worthy of careful scrutiny because

GPLv2~\S2(b), and they

can be a source of great confusion when not properly understood.

In considering GPLv2~\S2(b), first note the qualifier: it \textit{only} applies to

derivative, combined and/or modified works that ``you distribute or publish''.  Despite years of

education efforts on this matter, many still believe that modifiers

of GPL'd software \textit{must} publish or otherwise

share their changes.  On the contrary, GPLv2~\S2(b) {\bf does not apply if} the

changes are never distributed.  Indeed, the freedom to make private,

personal, unshared changes to software for personal use only should be

protected and defended.\footnote{Most Free Software enthusiasts believe there is a {\bf

    moral} obligation to redistribute changes that are generally useful,

  and they often encourage companies and individuals to do so.  However, there

  is a clear distinction between what one {\bf ought} to do and what one

  {\bf must} do.}

Next, we again encounter the same matter that appears in GPLv2~\S0, in the

following text:

\begin{quote}

``...that in whole or part contains or is derived from the Program or any part thereof.''

\end{quote}

Again, the GPL relies here on copyright law.

If, under copyright law, the modified version ``contains or is

derived from'' the GPL'd software, then the requirements of GPLv2~\S2(b)

apply.  The GPL invokes its control as a copyright license over the

modification of the work in combination with its control over distribution

of the work.

The final clause of GPLv2~\S2(b) describes what the licensee must do if she

distributes or publishes a modified version of the work --- namely, the following:

\begin{quote}

[The work must] be licensed as a whole at no charge to all third parties

under the terms of this License.

\end{quote}

That is probably the most tightly-packed phrase in all of the GPL\@.

Consider each subpart carefully.

The work ``as a whole'' is what is to be licensed. This is an important

point that GPLv2~\S2 spends an entire paragraph explaining; thus this phrase is

worthy of a lengthy discussion here.  As a programmer modifies a software

program, she generates new copyrighted material --- fixing expressions of

ideas into the tangible medium of electronic file storage.  That

programmer is indeed the copyright holder of those new changes.  However,

those changes are part and parcel to the original work distributed to