"Derivative Work" for Software Defined

PETERSON,SCOTT K (HP-USA,ex1) scott.k.peterson at hp.com
Fri Jan 17 14:27:55 UTC 2003

I agree with the outcome of the book and magazine examples, but for a
completely different reason: one involves copying the work of both authors
and the other does not. I'm going to use these examples as an excuse to
discuss some of the issues to which I believe people refer when they talk
about "contracts" v. "[something else]". I'm not my self comfortable that
"contract" is the right word to use for one side of this contrast (I believe
that, analytically, contract law has a role in both of these), but I'll use
it here because I don't see another term readily at hand.

To set up some terminology, let's assume that the two parties are an author
of some material and a user who wants to do something with that material. 

I believe that the "contract" situation is one in which it is necessary to
get the user's specific agreement to the contract terms - something by which
they have manifest their assent to being obligated to the terms of the
agreement such as might be indicated by signing a paper document or clicking
an 'accept' button. Without such assent, there is no legal mechanism that
the author can prevent the user from doing the thing stated in the
In the "something else" case, the thing that the user wants to do is
something about which there is a public law (as contrasted with the private
law of a contract) that says that the user can't do the thing without the
author's permission. The public law of interest, of course, is copyright
law. So, if what the user wants to do <includes> anything that is an
exclusive right of the author under the copyright law, then the author can
legally prevent that behavior of the user, even if the user has never agreed
with the author to take on any obligations to the author.

I emphasize the word <includes> to point out a detail that I think is
getting lost in some discussions.

In the book example: "affect the distribution of Dean Koontz books that
happened to be sitting on the same book shelf " - without that sort of
separate "contract" that I've described, this is true. But that fact has
nothing to do with how the relationship between the book. It is because your
hypothetical does not include doing anything that is an exclusive right of
King - you have not assumed that the person distributing Koontz also wants
to do something that needs King's permission, such as copy and distribute
King's book. For example, King might offer the permission to copy and
distribute his book on the condition that the person doing so not distribute
Koontz's book. Note that in the magazine example, permission IS required
because the hypothetical assumes copying and distribution of stories by both
authors. The significant difference between the two is the copying, not
whether a collective work is protected under the copyright law.

-- Scott
Scott K. Peterson
Corporate Counsel
Hewlett-Packard Company
One Cambridge Center
Cambridge, MA 02142
phone: 617-551-7612
mobile: 978-764-8615
scott.k.peterson at hp.com

-----Original Message-----
From: David Johnson [mailto:david at usermode.org]
Sent: Wednesday, January 15, 2003 10:17 PM
To: license-discuss at opensource.org
Subject: Re: "Derivative Work" for Software Defined

On Wednesday 15 January 2003 07:14 am, PETERSON,SCOTT K (HP-USA,ex1) wrote:

> That is not the same thing as saying that D has the positive
> legal right to combine anything that D wants with X's material when
> distributing X's material. To distribute both X's material and Y's
> material, D requires permission of both X and Y. X could decide to decline
> to give that permission for the case where X's material was distributed on
> the same medium with Y's material.

Reading a later message from you, I finally see what the '+' means in your 
"A+B". It means a separate object C that is derived from both A and B. This 
isn't aggregation. I believe the proper term is "compilation", which is a 
form of derivative work.

For example, Stephen King couldn't place a copyright-based license on his 
books that would affect the distribution of Dean Koontz books that happened 
to be sitting on the same book shelf. Neither could he do it for a story of 
his published in a magazine. But he *could* use a copyright-based license 
that affected the distribution of the magazine, which also happened to 
contain a story by Dean Koontz.

A magazine is an example of a compilation. It's what you would call "A+B".
copyrights of the individual stories and articles cannot affect each other, 
but they could affect the magazine.

A+B Magazine requires the permission of both author A and author B to
their stories. But A+B Magazine does not need the permission of A in order
publish B, or vice versa, without a contract in place to the contrary. On
other hand, A could use a copyright-based license that would affect the 
distribution of A+B Magazine. Such a license might force the magazine not to

publish both stories in the same issue.

The GPL section two is addressing such a situation. It states that the
does not cover other articles in the magazine, but that it does affect the 

David Johnson
pgp public key on website
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