Scope of copyright on compliations and derivative works

[Lawrence Rosen]

[Subject changed. Was "For Approval: Microsoft Permissive License"]

Alexander Terakhov keeps repeating in off-topic email:
> All
> preexisting protected elements fall under the BSD. Straightforward way
> to convey that fact is to keep the BSD on top and indent the GPL below
> it with a notice that only portion(s) of this file are under the GPL,
> not file/work "as a whole" ("the totality").

You misunderstand. You are demanding that we see only the pieces of a
collective/derivative work and not its expressive whole, which isn't
correct. Portions of the file are under the BSD (and anyone can use those
portions under the non-exclusive BSD!), *and* the work as a whole (a
separately copyrightable work!) is under the GPL. That's how both derivative
and collective works work in copyright law. 

I believe you are misreading 17 USC 103, in particular the first half of the
second sentence of (b), which makes it clear that one can obtain a copyright
for a collective or derivative work even if it contains preexisting
material, and the second half of the same sentence, which makes it clear
that the copyright on the preexisting material continues to subsist (as does
its license!):

Sec. 103. Subject matter of copyright: Compilations and derivative
works
    (a) The subject matter of copyright as specified by section 102
    includes compilations and derivative works, but protection for a
    work employing preexisting material in which copyright subsists
    does not extend to any part of the work in which such material has
    been used unlawfully.
    (b) The copyright in a compilation or derivative work extends
    only to the material contributed by the author of such work, as
    distinguished from the preexisting material employed in the work,
    and does not imply any exclusive right in the preexisting material.
    The copyright in such work is independent of, and does not affect
    or enlarge the scope, duration, ownership, or subsistence of, any
    copyright protection in the preexisting material.

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen
Author of "Open Source Licensing: Software Freedom and 
                Intellectual Property Law" (Prentice Hall 2004)

> -----Original Message-----
> From: Alexander Terekhov [mailto:alexander.terekhov at gmail.com]
> Sent: Friday, September 28, 2007 10:07 AM
> To: Chris Travers
> Cc: License Discuss
> Subject: Re: For Approval: Microsoft Permissive License
> 
> On 9/28/07, Chris Travers <chris.travers at gmail.com> wrote:
> > I know I shouldn't feed trolls but I suspect many other people may be
> > reading this article in the same way as Alexander even if the views are
> > different.
> >
> > On 9/28/07, Alexander Terekhov <alexander.terekhov at gmail.com> wrote:
> > >
> > > And here comes the arch paragon of "software freedom" jurisprudence:
> > >
> > >
> > http://www.softwarefreedom.org/resources/2007/gpl-non-gpl-
> collaboration.pdf
> >
> >
> >  I think you are misreading this article.  Please reread sections 2.1
> and
> 
> 2.1:
> 
> "The simplest case of notice preservation is unmodified incorporation
> of a permissive-licensed file from an external project into a GPL'd
> project"
> 
> It will cease to be a GPL'd project. It will become GPL'd portions +
> BSD'd portions project. Suggesting that it will remain a GPL'd project
> "as a whole" ("the totality") is incorrect and misleading.
> 
> > 2.2 carefully and note that the SFLC never suggests that the GPL either
> 
> 2.2 is about the case when BSD'd work is tainted by GPL'd
> modifications. Only GPL'd modifications are governed by the GPL. All
> preexisting protected elements fall under the BSD. Straightforward way
> to convey that fact is to keep the BSD on top and indent the GPL below
> it with a notice that only portion(s) of this file are under the GPL,
> not file/work "as a whole" ("the totality").
> 
> regards,
> alexander.
> 
> --
> "PJ points out that lawyers seem to have difficulty understanding the
> GPL. My main concern with GPLv3 is that - unlike v2 - non-lawyers can't
> understand it either."
>                              -- Anonymous Groklaw Visitor