Question on OSD #5

[Arnoud Engelfriet]

Chris Travers wrote:
> On Dec 15, 2007 8:39 AM, Arnoud Engelfriet <arnoud at engelfriet.net> wrote:
> > Why not? It's a condition on the right to create derivative works.
> > Sure, it's onerous, but generally not that onerous that it would be
> > unenforceable.
> 
> The enforcibility issue outside the courtroom would probably have to do with
> how you might know someone was modifying your software.  If you knew, then

Well, for any tort or contract violation the rights holder has to know
of the infringemen first. 

> the question becomes to what extent this is allowed in copyright law.
> IANAL, but I believe that in the US, there have been copyright misuse
> defenses which have prevailed in cases like this.  The idea is that
> preparation of derivative works doesn't mean automatic rights to one's
> customers' works.  

That sounds more like forced assignment of copyright interests in
the derivative works to the original copyright holder. I can see how
that would be a misuse. Over here in Europe, for instance, you generally
can't demand that licensees hand over copyrights (or patents) to
derivatives or improvements. However you can request a free license
to those derivatives or improvements as a condition of giving access
to your original.

I also don't see a legal difference between "you have to give source
to anyone you give a binary" and "you have to give me source when you
release the binary". Both force the making available of source. The
latter just is more convenient for the original licensor.

Arnoud

-- 
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/