What’s GNU?

By Elliot Zimmerman, Attorney At Law, Fort Lauderdale, FL

The GNU (“Generally Not Unix”) General Public License (“GPL”), or GNU GPL for short, which can be viewed here, is used by authors who want their works to remain free for others to copy and change. Under the terms of the GNU GPL, the author first copyrights the original work then licenses it to the public to use for free, provided that anyone who redistributes it, with or without changes, must pass along the freedom to further copy and change it.

Sometimes, others add changes to the original work licensed to the public under the terms of the GNU GPL which in and of themselves rise to the level of a new original copyrightable work, and not a derivative of the GNU GPL licensed original.

When can the author of an original computer program, who has licensed the initial work to the public under the terms of the GNU GPL, force others, who have copied and changed the original, to freely distribute the resulting new work with the modifications and additions?

Consider the following: If Party A creates a work by adding an image or additional code to a program that was copyrighted and licensed to the public by the initial creator, Party O, via the GNU GPL, may Party B distribute Party A’s version containing Party A’s additions or modifications without the permission of Party A because the new work is now entirely subject to the GNU GPL?

Assume the following notice appears on Party O’s work:

// ———————————————————————-
// Copyright 2002-2003 Party O
// ———————————————————————-
// This program is free software; you can redistribute it and/or
// modify it under the terms of the GNU General Public License (“GPL”)
// as published by the Free Software Foundation; either version 2
// of the License, or (at your option) any later version.
// This program is distributed in the hope that it will be useful,
// but WITHOUT ANY WARRANTY; without even the implied warranty of
// See the GNU General Public License for more details.
// To read the license please visit http://www.gnu.org/copyleft/gpl.html.
// ———————————————————————-

The pertinent portions of the GNU GPL:

“0. … the output from the Program is covered o­nly if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.”

“2. … mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.”

Pertinent Sections of United States Copyright Law:

Copyright protection extends to an “original work of authorship fixed in any tangible medium of expression.” See 17 U.S.C. 102 (a) at http://www.law.cornell.edu/uscode/17/102.html.

Copyrights are divisible (i.e. you can retain certain exclusive rights, but transfer others). See Section 17 U.S.C. 106 at http://www.law.cornell.edu/uscode/17/106.html.

Pertinent Florida Case Law:

Planetary Motion, Inc. V. Techplosion, Inc. Et Al., 261 F.3d 1188, U.S. District Court of Appeal for the 11th Circuit (2001), which held, software that had been distributed pursuant to a GNU General Public License (“GNU GPL”) did not defeat trademark ownership, nor did it in any way compel a finding that the plaintiff author abandoned his rights in the trademark or copyrights to the software. Others could not use the creator’s trademark or copyrighted material aggregated and distributed with the GNU GPL software without the plaintiff’s consent. Defendants misconstrued the function of the GNU General Public License. “Software distributed pursuant to such a license is not necessarily ceded to the public domain” and the licensor retains ownership rights, which may or may not include rights to a mark or copyrights to portions therein. Because a GNU GPL requires licensees who wish to copy, distribute, or modify the software to include a copyright notice, “the GNU GPL itself is evidence” of the author’s efforts to control the use of the mark or copyrights in connection with the software.


The above notice on the original program created by Party O purports to license via the GNU GPL rights to the “program.”

Since copyright is divisible, we must first determine the meaning of the word “computer program.” A definition for the term “computer program” is actually a question of fact that would need to be determined by a court or jury. Dictionary.com defines computer program as follows: “computer program n: (computer science) a sequence of instructions that a computer can interpret and execute; “the program required several hundred lines of code” [syn: program, programme, computer programme]”.

It can be argued that an image (which has been stored on digital media) is not a “program.” It is data which is called by a program. It would be anomalous to propose that a copyrighted picture taken by Party A, which was included in Party A’s distribution of Party O’s GNU GPL program, could be used by Party B, unless Party A consented.

Similarly, it follows that a presentation, picture, or written work, which is created by utilizing a copyrighted program, is not a “program,” but, displayed by running the program.

Very generally, there is no impediment to obtaining independent copyrights for original works of authorship created by running programs. If there were, Microsoft would be able to prosecute every author who submitted an original manuscript to a publisher in Word format and digital artists would be unable to copyright their works because they used a paint program.

Notwithstanding, if the original GNU GPL program’s purpose was to create a particular display which in and of itself rises to the level of an original work of authorship, the display would be subject to the GNU GPL (e.g. a blank Excel Spreadsheet or a blank Word Document).

Turning to paragraph 2. of the GNU GPL, “the mere aggregation” of an original work of authorship, which is not a derivative or compilation of the program, together with the GNU GPL program (or with a work based on the program) on a singular medium of distribution does not bring that other work under the scope of the GNU GPL. Just because a distribution contains some files which are subject to the GNU GPL, not all files contained in the distribution are so subject. On the other hand, modifications to the initial program code which are considered to be derivatives or compilations of same are subject to GNU GPL.

If the initial creator places some of the work under the GNU GPL, the entire distribution is not automatically subject to the GNU GPL. If another aggregates his/her/its original non-derivative files in his/her/its distribution of the original creator’s GNU GPL software, the non-derivative files are not automatically subject to the GNU GPL. See paragraph 2. of the GNU GPL and 17 U.S.C. 106.

It is difficult to maintain that the distribution of a GNU GPL work is restricted by another aggregating his/her/its own proprietary non-derivative image files, written works in document files, and/or other non-derivative program code files together therewith. Those who wish to repackage and redistribute the initial work should simply omit the non-derivative proprietary files to escape liability. The initial GNU GPL files may be freely distributed, but not the non-derivative proprietary files or trademarks aggregated therewith (they belong to the creator/owner of same, whether the creator/owner of the material is the original author, or whether the creator/owner of the new non-derivative aggregated works is a redistributor). Non-derivative GNU GPL files do not magically turn into GNU GPL files simply because they were aggregated in a distribution of a GNU GPL work.

In conclusion, Party B may not distribute Party A’s non-derivative copyrighted works which were included in Party A’s distribution of Party O’s GNU GPL software without Party A’s permission. Additionally, Party O cannot force Party A to freely distribute same.

c. 2004 Zimmerman
All Rights Reserved

Elliot M. Zimmerman is located in Fort Lauderdale, Florida. His practice focuses on entertainment law, cyberlaw, intellectual property (copyrights and trademarks), personal injury law, insurance law, and litigation. He is founder and former chairman of the Florida Bar Entertainment, Arts and Sports Law Committee (“EASL”) which became a full section of the Florida Bar in 1988. He lectures for Continuing Legal Education and is a legal author, with articles appearing in such publications as “The Florida Bar Journal” and “Martindale-Hubbell Legal Publishing Preview.”

Elliot Zimmerman, P.A.
Attorney at Law
5353 N Federal Hwy., Suite 405
Fort Lauderdale, FL 33308
(954) 565-6996