Scope of copyright on derivative works

[Chris Travers]

On 9/28/07, dlw <danw6144 at insightbb.com> wrote:
>
> "The Changed Work is allowed only because the original open source
> licenses
> on the contributions authorize the making and distribution of changes. I
> call that "sublicensing", although some lawyers prefer to view it as
> "licenses emanating directly from their original licensors". Those are
> different way of describing the relationship of the parties, but I believe
> both have the same practical result."



I think I understand this statement by Mr Rosen.  I will let him correct me
if my explenation is wrong (IANAL).

Suppose I write a book and include photographs copyrighted by you.  You give
me permission to prepare the book which includes the photographs but don't
mention sublicensing.  This permission would include an implied sublicense
right for me to negotiate with a publisher on the publication of the
photographs in the book provided that it is part of that work (because I
have to show the publisher that they would have the right to distribute your
copyrighted material).  The argument would be that using BSD (or even GPL)
code in a different application under any license (GPL, BSD, proprietary
license, etc) would constitute a similar arrangement whether or not the BSD
license had to remain intact for those portions used with permission.

While I think that the argument that this is not a sublicense but rather a
license eminating directly from the licensor is the best way to avoid
questions of divisibly, I will also concede that Mr Rosen is correct that it
makes no practical difference as to what is allowed (it may affect standing
in infringement lawsuits however).

The BSD and MIT licenses appear to require notice that the original author
grants YOU, the recipient, certain permissions to his or her copyrighted
work, and these are not affected by merely including the file in a different
work under additional restrictions, nor does it matter how you obtained that
specific code.

However, like the MS-PL, the BSDL code used with permission and encumbered
by no other copyrights is governed only by the BSDL because you have not
right to add further restrictions to it.


The GPL states:
>
> "b) You must cause any work that you distribute or publish, that in
> whole or in part contains or is derived from the Program or any    part
> thereof, to be licensed as a whole at no charge to all third    parties
> under the terms of this License."



Nothing in that section precludes portions of the application carrying
additional permissions from the copyright holder of the code in question.
This is distinct from the work as a whole license.

Think of it this way.  Suppose I get an anthology of Shakespeare's works.
The anthology as a whole is copyrighted and all rights are reserved, but if
I copy a single sonnet out of it, I have not violated their copyrights and
so they have no cause of auction.  Each individual element may be public
domain, but the selection and ordering of the work may provide a set of
restrictions on that work as a whole.

The GPL v2 is very clear about this, stating that it only exercises the
right to control derivative and collected works, and hence does not impact
how components may be distributed separately.

Any judge in this United States, while holding his copy of the GPL
> license in his own hands, will *not* interpret the plain meaning of the
> contractual words  "this license" in sec. 2(b) to mean "licenses
> emanating directly from their original licensors."



That same judge will probably also ask "who holds the copyrights in
question?"  This would be part of determining whether the individual has
standing to sue.  At least one circuit (the 9th) has a very limited
interpretation of sublicense rights (see Gardner v. Nike, 2002, for a case
that surprised a lot of lawyers in this regard).  I live in Washington,
which is under the jurisdiction of that circuit.

The term "this license" obviously means the copy of the GPL he is
> holding in his own hands. To claim otherwise calls for the willing
> suspension of disbelief.
>
>
Not at all.   The judge would likely see "this license" as the legal
contract in question, and be forced to determine what it covers, whether
there are similar other agreements between any of the parties relating to
portions of the code in question, etc.  The copy of the GPL (or any other
open source liense) that the judge holds in his/her hands does not answer
any of these important questions.

Best Wishes,
Chris Travers
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