Jurisdictional neutrality (was Re: Copy-Back License draft for discussion)

[cody koeninger]

--- Brendan Scott <lists at opensourcelaw.biz> wrote:
>This would mean drafting
> licenses by reference to actions, rather than legal
> constructions (eg "modification" rather than
> "production of a derivative work").  To the extent
> (eg in the US) a modification doesn't constitute a
> derivative work, the actor does not need to rely on
> the license to create the modification.  

One problem with that approach is that not all
derivative works in the software context are clearly
modifications, especially modifications of code. 
There are plenty of OSS licensors who would want to
restrict derivative works to the extent allowed under
law, even when no modification of code had taken
place.
  
E.g. microstar v formgen - how is using a level
builder to make new maps for duke nukem 3d a
"modification" of the code?  Yet the maps were held to
be derivative works of the story expressed in the
software.  

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