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[Kevin Sullivan <sullivan.kevinj AT gmail.com>]

It's not clear the question has ever been litigated. The position I'd still try to take if asked would be that as long as (1) the new artifact does not incorporate the original in whole or part (beyond that allowed by fair use provisions), and (2) one has required permission to use the original, that the new artifact should not be considered a derivative work. As an example, provided one has permission to have a program at all, is a cryptographic signature "derived" by application of an algorithm to the original really a "derivative work" in the spirit of the law, given that no aspect of the original work is recognizable (be person or machine) in the new work?

On Thu, Jul 16, 2020 at 9:24 AM Xuanrui Qi <xuanrui AT nagoya-u.jp> wrote:

Hi all,

Again, I think the situation _might_ be analogous to that of ZFS on
Linux. It's separate from the Linux source tree, but nevertheless one
can't distribute ZFS binaries with Linux.

The ways to go seem to be either (1) consult an attorney experienced in
open-source software, or (2) consult a NPO specializing in this. Either
way they will be much more able to figure out and explain the
subtleties than this list.

Xuanrui

On Wed, 2020-07-15 at 21:52 -0700, Jim Fehrle wrote:
> If you write new code with the same functionality as the original,
> copyright protection may not apply because copyright only covers
> the form of the _expression_.  That's how FSF and Linux were able to
> duplicate Unix.  This defense is most persuasive when the author of
> the new code never looks at the original code, instead working from
> specifications prepared by others.  You would also need to avoid
> patents and trade secrets used to create the original, though I
> expect anything in open source can't have trade secrets.  The
> original authors probably have to grant a license to any of their
> patents used in the code, which the GPL would then sublicense to
> others.  Third party patents could still be an issue. e.g. the
> original code could infringe a third party patent, a problem that the
> new code could inherit.
>
> My understanding of US law.  I'm not a lawyer.