I think you nailed it with this one. I don’t see the difference either. To what extent should modifying themes and CSS codes be limited on WP?

My premise for this is not so much the actually wording of Title 17 §107, but with the reasons underlying its existence. Fair Use serves as a sort of “sanity check” or “escape clause” for situations where the reach of copyright law would otherwise overextend itself and thus become susceptible to recriminations of being unconstitutional.

Congressional authority to extend the exclusive monopoly of copyright protection stems from the following clauses in Section 8 of the U.S. Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

This places a significant condition upon Congress’s authority to enact the copyright law — if the law doesn’t promote Progress(…) then the law is unconstitutional (see also the last clause of Section 8, where the law is mandated to be “necessary and proper”).

Without the Fair Use doctrine, a schoolteacher might be sued for infringement for playing Leonard Cohen music in the classroom while studying modern composers; but then that teacher could appeal on the grounds that the enforcement of the law is impeding the Progress(…) and that the law is thus unconstitutional. Every such case would eventually end up before the Supreme Court (though lower courts can rule laws unconstitutional, the government can, and likely would, appeal any such ruling).

Fair Use serves as a mechanism for lower courts (or even copyright holders) to short-circuit these situations where application of copyright law would otherwise cause the law to be deemed unconstitutional. If the otherwise infringing use of a copyrighted work is considered to be in the best interests of promoting Progress(…) then Fair Use affirms that usage as non-infringing.

Now unless I am completely off-base in the above assessment, how can anyone ever hope to claim a Fair Use defense — i.e., that they are providing a benefit to the promotion of Progress(…) — when they go against the licensing of the copyright holder in order NOT to share with society the creative and intellectual expressions in their infringing derivative work?

While I present this mainly as “food for thought” and I am not aware of any particular court cases addressing this with any relevancy, I would submit the ruling in Daniel Wallace’s antitrust lawsuit against the GPL as one example of how courts might perceive a “proprietary Fair Use” of GPLed software and “the effect of the use upon the potential market for or value of the copyrighted work”).

For the opinion of Wallace v. FSF

[T]he GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation.

Sorry for the delayed response. The short answer is that Fair Use is a very fact-intensive analysis, and that it would not apply the same way in every case. Every piece of software you mention would require its own separate analysis, and some might, some might not, fall within fair use. You’ll note that my fair use analysis of WP themes contains some very specific factual caveats. The same would be true of any analysis Windows-based code.

Thanks for taking the time to comment!

I have to confess I’ve been thinking on this quite a bit and find myself leaning ever more strongly in agreement as far as the “not derivative works” argument goes.

I’m having a much harder time seeing the “fair use” argument. Without breaking out each prong, let me say that I don’t see how your arguments for any prong apply to WordPress / GPL Software and NOT apply equally to Windows / Non-GPL software. Therefore, it seems that if the GPL loses copyright protection to Fair Use (by the weight of your overall argument), so would all software.

Perhaps if you could clarify that aspect?

Thanks for the reasoned response. I’ll respond in turn to the most serious criticism you make.

” Because if one did accept it, then any similar software written for Windows – theme managers, alternative window managers, screensavers, and so on – would have Fair Use coverage and could ignore Windows’ copyright! ”

That’s only true if you apply the fourth prong in isolation – something that the courts have consistently rejected.

Fair use is always a case-by-case analysis, in which no one prong of the test is determinative by itself, and in which even the four identified prongs are not determinative. So I don’t agree with your premise that my fair-use argument would wreak havoc on the Windows copyright unless the other three factors were in play as well. Ultimately, it’s a jury question.

As for the Pearson case that Saul cites, it’s worth reading the entire “derivative work” analysis – because it is almost entirely limited on its facts to books that provide answers to questions posed in other books. Both the Pearson case and just about every case it relies upon are based upon that narrow fact pattern, and its value it limited beyond that narrow scope. I would add, as well, that the Pearson case and most of the other cases it relies upon are opinions of the district courts located in New York, rather than any appellate court – and so reflect only a very narrow cross-section of the judiciary.

I will say, however, that Saul’s argument is many times more persuasive than all the “because I said so” garbage and ad hominem attack that passes for intellectual discourse in the blogosphere.

Thanks for that – very good points indeed!

That’s the exact sort of legal cite-based back and forth that I think actually possess some real value in analyzing the GPL!

In citing the Galoob v Nintendo case, Mr Wasylik fails to consider this limitation of copyright — the joystick device did not threaten Nintendo’s marketability of their software — only the marketability of their hardware (which is not protected by copyright law). Employing copyright law to protect the marketing of things other than the copyrighted work itself is an abuse of the law and the courts need to firmly condemn all such attempts (unfortunately, this doesn’t always happen).

As to whether a driver, plug-in, module, theme, or template should be considered a derived work, I think a more convincing precedent would the case of textbook answer guides being considered derivations of the original textbook — with the reasoning similarly applicable to the relationship between such add-ons and the original software.

http://www.exclusiverights.net/2009/10/court-finds-that-answers-to-textbook-questions-are-an-infringing-derivative-work/

[The Defendant's answer sets do] not have independent economic value, and they are not by themselves economically viable. The Schedule is by nature derivative and it is meaningless without the Manual. It has no purpose on its own as it merely lays out a schedule with repeated references to the Manual, using terms that appear in the Manual and that have little meaning without reference to the Manual.