[License-discuss] proposal to revise and slightly reorganize the OSI licensing pages

Rick Moen rick at linuxmafia.com
Sat Jun 9 06:01:12 UTC 2012

Quoting Chris Travers (chris at metatrontech.com):

> Nowhere in these do I see any indication that mere inclusion of one
> work in another creates derivation.

You will not find a simple acid test there or anywhere else.  And yet,
in my experience, if you read those cases, you will get the pattern of
the way judges rule.  It's a matter of whether copyrighted expressive
elements were incorporated into a new work without permission.

You are not going to find sharp lines about what constitutes creation of
a new work, versus what is a collection.  However, as I said, you will 
get the pattern and be able to predict fairly well how other cases are
likely to turn out.

> But literal copying isn't what makes a derivative work a derivative
> work.  The AFC test gets you to the question of what's protected and
> whether the overall work falls under copyright law generally.

In a backward sense, yes.  That is, the abstraction-filtration-comparison 
conceptual test is _based_ on more fundamental concepts of what is a
copyrightable element vs. not, and of what a 'derivative work' is and is
not -- but is certainly not the source of either of those key concepts.
And, the point you seem to be shrugging off, that test simply has no
application to the NuSphere 'case' that could theoretically have existed
if NuSphere hadn't come to the immediate rational conclusion that they'd
committed a tort and ought to settle.

> ... the question is limited to whether that is different just because
> we are talking about a single binary.


NuSphere's product was obviously derivative of MySQL because of the
incorporation of copyrighted expressive elements into a new work without
permission.  The technological details are trivia.

I'm not going to get suckered into one of those unspeakable bullshit
computerist discussions about the purported effect of different sorts of
linking, or of particular classes of files and not others, on whether
derivative works exist or not.  That's not the way copyright law works
and not the way judges think.  If you don't agree, read caselaw and make
up your own mind.  If you wish to debate the matter, kindly find someone
with more time and interest.

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