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I've found that my most recent project has been taking a significant portion code from a GNU GPL code base. While i’m aware that the nature of copyright law allows for such usage, I’m unclear about the concept of ‘fair use’ as it pertains to code.

Specifically, I’m wondering how much of a given work of software can be claimed under fair use? I understand that this might vary based on jurisdiction and the specific license of the software, but any general guidance or resources to understand this better would be greatly appreciated.

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  • Very definitely related, possibly actually a duplicate: How much is "substantial portion" in MIT licence?; in particular I'd echo the statement from the answer there: "assume that it applies to any portion, no matter the size."
    – Philip Kendall
    Commented Mar 26 at 21:48
  • @PhilipKendall this is only one portion of fair use, there are many other factors. I would also like to politely reject the idea that a substantial portion is any portion, as that goes against nearly every ruling on copyright's fair use test regarding the substantiality of a claimed work, at least in the US.
    – tuskiomi
    Commented Mar 26 at 21:50
  • But in an open source context, do you want to be that test case? I feel at this point this question would be better suited for Law SE, because there's nothing actually specific to open source about it - it applies equally to all code.
    – Philip Kendall
    Commented Mar 26 at 21:55
  • My thought process was that Open source is more suited for this question as enforcement of open source is exclusively built on copyright & contract law, as well as this question being about code specifically. I'm happy to move it if your thoughts are the consensus.
    – tuskiomi
    Commented Mar 26 at 21:57
  • The code you are using is covered under a license contract, not just copyright. Does the license allow for re-using the covered code in another project?
    – doneal24
    Commented Mar 27 at 16:02

3 Answers 3

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Fair use is not a right that you have, but it is a way to defend yourself against a claim of copyright infringement. In the end, it is a judge who decides if your use of the copyrighted work falls under the fair use doctrine or not.

In determining if something is fair use, four factors are considered:

  1. For what reason the re-use occurred. If you quote parts of a work to give context to the critique you are writing, that is more likely to be ruled fair use than if you copy something just to save yourself the time of writing code with a similar functionality.
  2. The nature of the copyrighted (original) work. This seems to relate largely to if the work should be protected by copyright in full, or if if it contains parts that are not subject to copyright protection.
  3. The amount and substantiality of the re-use. This is the point that relates to the amount of code that you copied.
  4. The effect of the re-use on the potential market of the original. If your re-use is in competition with the original, or even if you could have obtained a license for your re-use, then it is less likely to be considered fair use.

When looking at open-source software, the fourth consideration is likely to be a killer against using the fair use defense. A license to use the code, and even to transform it, is available, so just pay the price and be done with it (where the price is not necessarily a money transfer to the suppliers of the code).

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    +1 from me. I'd also note that free software tends to travel internationally, and fair use "rights" are not as elastic everywhere else as they are in the US. The UK, for example, doesn't have them at all; it has "fair dealing" exceptions instead, and I don't believe your proposed use comes under any of the activities covered by fair dealing. I really encourage you, as I think Bart does, not to play fast and loose with the GPL; if you've used copyleft code, accept that your code will also need to be copylefted.
    – MadHatter ♦
    Commented Mar 27 at 8:25
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    Companies that produce commercial software, and have an organised view of open source, generally presume that the amount of GPL source they can incorporate is zero.
    – John Dallman
    Commented Mar 27 at 16:18
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    @tuskiomi, Wikipedia prtobably explains it better than I could: en.wikipedia.org/wiki/Fair_use#4._Effect_upon_work's_value
    – Bart van Ingen Schenau
    Commented Mar 28 at 8:11
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    @supercat, I expect your example to fall under the Merger doctrine, because there are so few ways to use the (hardware) API and get the desired effect. That is a completely different concept than fair use.
    – Bart van Ingen Schenau
    Commented Mar 28 at 8:14
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    @tuskiomi, by selling it to people who don't want to comply with the GPL.
    – Mark
    Commented Mar 29 at 1:25
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There's no international fair use doctrine, so it varies by jurisdiction. That means relying on "Fair Use" might not be very helpful, if you don't want a resulting software product derived from it to be restricted to the more permissive jurisdictions.

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In this particular case, the answer is: none

fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. (source)

What you are describing is the creation of a derivative work, which falls entirely under copyright laws the moment you use any of the original code at all.

And since the GPL is a copyleft licence, by using code that is covered by the GPL, your entire software can now be distributed only under the terms of the GPL. Thank you for your (involuntary) contribution to Free Software.

The way to avoid this scenario is to either write all the code internally, or if you absolutely want to copy how someone else did it without getting into copyright issues, to use a clean-room implementation where the people actually writing the code never see the design you are copying and instead have it explained to them by those who have. With good procedures and extensive documentation of what exactly passed between these two teams.

In most cases, proper clean-room implementations are more effort than just writing it all from scratch.

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  • As wIkipedia notes, "viral license" is a pejorative term, and not everybody round here is all that keen on it.
    – MadHatter ♦
    Commented Mar 27 at 21:05
  • @MadHatter I'm a big GPL fan and don't consider it insulting or anything. But if you have a better term the expresses teh same meaning, feel free to suggest an edit.
    – Tom
    Commented Mar 27 at 21:47
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    It's not clear to me that copying code from an open source project necessarily constitutes creating a derived work in every case. Also, you are right that creating derived works is an action protected by copyright, but it is not clear why you are ignoring the OP's point about fair use (which would be a potential defense against against copyright infringement claims arising from creating a derived work without permission).
    – John Bollinger
    Commented Mar 28 at 15:21
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    @JohnBollinger creating a derivative work is NOT a form of fair use. Fair use is if you quote a small piece of a copyrighted work to report on it, comment on it, make fun of it, etc. But the OP's company specifically copies a piece of code to save themselves the effort of writing it from scratch. This is not an instance of fair use.
    – Tom
    Commented Mar 28 at 16:53
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    @Tom, this answer claims that the OP's use of the GPL work in question could not be protected under the fair use doctrine because it constitutes creating a derivative work. That clearly is not a valid argument, as the parody example demonstrates. More generally, you seem to be making assumptions -- probably warranted, but assumptions nonetheless -- about the nature of the OP's use of the copyrighted work. There just isn't enough information provided to make a good analysis.
    – John Bollinger
    Commented Mar 29 at 12:56

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