OSD Model Code -- Article 1 (Free Distribution)

Rod Dixon, J.D., LL.M. rdixon at cyberspaces.org
Mon Jan 20 18:42:46 UTC 2003

I think Larry's point is a plausible interpretation as well, but the point
is well-taken by this discussion that the current version of Art. 1 needs
revision.  Unless there is a very good reason to include a guideline on
"aggregate software" under Art. 1 of the OSD, which covers free
distribution, I favor the clarity of Larry's initial suggestion for revising
Art. 1.


----- Original Message -----
From: "Lawrence E. Rosen" <lrosen at rosenlaw.com>
To: "'Mark Shewmaker'" <mark at primefactor.com>
Cc: "'Rod Dixon'" <rodd at cyberspaces.org>; <license-discuss at opensource.org>
Sent: Monday, January 20, 2003 12:30 AM
Subject: RE: OSD Model Code -- Article 1 (Free Distribution)

I think you're confusing "copies," "collective works" and "derivative
works."  These are each defined in the Copyright Act, 17 USC §101.
There is no such definition for "component of an aggregate software
distribution."  Claiming a collective work copyright doesn't mean you've
created a derivative work.

Here's an example.  If an author exercises great creativity to collect
together into one work the best poems of the last 10 years, he is
creating a collective work and not a derivative work.  The degree of his
creativity isn't a factor unless he exercises no creativity at all
(e.g., simply a list of poems randomly selected), in which case his
collective work copyright might not be valid.

Here's another example.  If an author exercises great creativity to find
the best open source utilities for distribution on a single CD, he is
creating a collective work and not a derivative work.  He requires
licenses to make copies, not licenses to create derivative works.
That's true no matter how much creativity he put into bringing the
collection together.

/Larry Rosen

> -----Original Message-----
> From: Mark Shewmaker [mailto:mark at primefactor.com]
> Sent: Sunday, January 19, 2003 8:03 PM
> To: lrosen at rosenlaw.com
> Cc: 'Rod Dixon'; license-discuss at opensource.org
> Subject: Re: OSD Model Code -- Article 1 (Free Distribution)
> On Sun, 2003-01-19 at 14:26, Lawrence E. Rosen wrote:
> >
> > Article 1 now reads as follows:
> >
> >    "The license shall not restrict any party from selling or
> >    giving away the software as a component of an aggregate
> >    software distribution containing programs from several
> >    sources.  The license shall not require a royalty or
> >    other fee for such sale."
> >
> > I think this Article really means:
> >
> >    "The license must permit all licensees to make copies of
> >    the software without payment of additional royalties to
> >    the licensor.  The license cannot restrict licensees
> >    from either selling or giving away those copies."
> [...]
> > Should we reword the OSD where appropriate to achieve clarity?
> I'm worried that this rewording could change OSD requirements
> for the case of code incorporated into collections for which
> compilation copyrights are claimed.
> Going back for a moment to the case of the GPL:
> | In addition, 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.
> I have always assumed that if you put together a bunch of GPL
> programs on a CD and sold it, that was one thing, but if
> instead you claimed that you selected and put the programs
> together in some artistic or creative fashion and claimed a
> compilation copyright on the whole thing, that it would no
> longer be a "mere aggregation", and that the collection as a
> whole would have to be distributed on terms compatible with the GPL.
> (That is, I've always assumed that you can't claim that
> you've put together a "mere aggregation" of programs while at
> the same time claiming that you've been creative enough in
> your selection to warrant a compilation copyright on the whole thing.)
> Although the current Article 1 restricts licenses from making
> claims on aggregate collections that include covered code, it
> doesn't seem to make such restrictions if the collections are
> more than just a mere aggregation of covered code.
> I'm worried that your new Article 1 might restrict licenses
> from making claims on collections that are more than mere
> aggregations, because even though those collections for which
> a compilation copyright is claimed are necessarily a
> derivative work (IMHO), programs would likely be included as
> whole copies, and your new Article 1 says that the license
> can't restrict licensees from selling or giving away copies,
> with no exceptions made if in merely making the copy they're
> also making a derivative work.
> (BTW, article 8 is a moot point.  Even if the license
> "allows" the new compilation to be distributed under the same
> license, Article 1 seems to be implying that it can't make
> any particular requirements about the compilation as a whole,
> such as saying it must be distributed under this
> license.)
> That's my worry about your proposed change.  (I'm not a
> lawyer here, so maybe I'm thinking about this all wrong, or
> maybe I'm confused on some basic points somewhere, but it
> seems to me as if your rewording would really change things.)
>  -Mark Shewmaker
>   mark at primefactor.com

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