"Derivative Work" for Software Defined

Rod Dixon, J.D., LL.M. rdixon at cyberspaces.org
Tue Nov 12 22:22:20 UTC 2002

It's an intriguing idea, Dan, but your initial point that a derivative work
triggers the compliance with "FOSS" seems only partially correct. A public
re-distribution of the original work, for example, would trigger
"compliance" as well...to the extent that compliance issues arise.

In your second paragraph, you indicate that the
abstraction-filtration-comparison test established by the Second Circuit is
aimed at determining what constitutes a derivative work. Are you confident
of this claim?  There may be a principled basis for your position, but
laying out the test does not quite sufficiently make that point.

The test is primarily targeted for a different purpose- - at least in the
software context (all of these tests with various names, AFC,
idea/expression dichotomy and so on seem to aid the court in separating
ideas from expression to determine what's left of the alleged infringing
work once the tests are applied...on the track toward resolving an
infringement claim).  Even assuming a court has the wherewithal to abstract
and filter out ideas from expression in the literal and non-literal aspects
of a computer program, I am not sure that process would be relevant to open
source. I doubt that there would be the over-reaching by an open source
copyright holder that is generally required to reach this phase of dispute
since the purpose of these tests, ostensibly, is to allow the alleged
infringer to go about his or her way if all that the court has before it,
after application of the pertinent test, is uncopyrightable expression; it
would be odd to see an open source developer attempt to make claim to that.

Admittedly, it may be intriguing to determine whether these idea/expression
tests are suitable for derivative software work analysis, but courts seem to
be following a different track. At issue for courts, it seems to me, is a
fuss over degrees of "modification;" namely, whether a modification is too
trivial/simplistic or "too"  transformative to be deemed derivative (imagine
a scale with the balance being the derivative measurement).  The MODEL CODE
for the OSD will attempt to set out this distinction, we hope.


Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
rod at cyberspaces.org
My papers on the Social Science Research Network (SSRN) are available
through the following url: http://papers.ssrn.com/author=240132

----- Original Message -----
From: "Ravicher, Daniel (x2826)" <dravicher at pbwt.com>
To: <license-discuss at opensource.org>
Sent: Tuesday, November 12, 2002 10:36 AM
Subject: "Derivative Work" for Software Defined

> Free / Open Source Software ("FOSS") licensing relies critically on the
> concept of
> derivative work since software that is independent, i.e. not derivative,
> FOSS need not abide by the terms of the applicable FOSS license.
> one
> is left to ask, just what is a "derivative work?"  This article
> (http://www.pbwt.com/Attorney/files/ravicher_1.pdf) addresses that
> Your comments and thoughts would be most appreciated.
> Best,
> --Dan
> Daniel Ravicher
> Patterson Belknap Webb & Tyler LLP
> 1133 Avenue of the Americas
> New York, NY 10036
> 212.336.2826 direct
> 212.336.7900 fax
> mailto:dravicher at pbwt.com
> http://www.pbwt.com/
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