[License-discuss] License incompatibility (was Re: Open source license chooser choosealicense.com

[Lawrence Rosen]

John Cowan wrote:
> But in any case my point is that there is no bright line between
> a derivative and a collective work.

If you are looking for a bright line in copyright law, I'll agree that that
isn't it. 

Here again is what you hypothesized: "Bob interweaves his code into Alice's
code (as in this hypo), Bob adds code to the end of Alice's procedure, Bob
adds new procedures to the end of Alice's module, Bob adds a new module to
Alice's module."

Consider that all the Bob v. Alice examples you described would be
undertaken either for expressive or functional reasons. If for functional
reasons, then copyright has nothing to do with it. Bob and Alice can *use*
software that they lawfully acquire, and *interoperate* it for functional
purposes with other software that they lawfully acquire, to their heart's
content. It is my impression that the law in the US and Europe strongly
favors such freedom to use and interoperate legally acquired computer
software without copyright restraints.

But if there is an expressive component to what Bob and Alice have done,
that expressive aspect alone is protectable by copyright, and they can
prevent the making of copies, derivative works, collective works, or
compilations of their own expressions -- again to their heart's content. And
they can choose to license those things.

That is true regardless of whether what Bob and Alice create is a derivative
or a collective work. Copyright law is the same for both. What is different
is that some FOSS licenses (such as GPLv2) actually obfuscate even further
by their sloppy language that fuzzy-line between derivative and collective
works, and leave people confused about what they can and can't do with their
legally-acquired software. 

There isn't a bright line between expressive and functional components
either, as my lawyer friends will remind us. They will refer you to the
confusing "abstraction-filtration-comparison" tests that are used in the
U.S. courts to distinguish functional from expressive content. But at least,
when talking about the principles of copyright law, your hypothesized
examples ought to focus on the things that Bob and Alice do for *expressive*
purposes rather than the things they do merely to allow their software to
function together through some technical (or bizarre) form of linking.

I'll apply copyright law only when Bob or Alice make their software
prettier.

/Larry


-----Original Message-----
From: John Cowan [mailto:cowan at mercury.ccil.org] 
Sent: Wednesday, September 11, 2013 6:20 PM
To: lrosen at rosenlaw.com; license-discuss at opensource.org
Subject: Re: [License-discuss] License incompatibility (was Re: Open source
license chooser choosealicense.com

Lawrence Rosen scripsit:

> I would guess that Bob's adding "a bunch of calls to syslog()" into 
> Alice's work might create a derivative work of Alice's work, but that 
> wouldn't convert "syslog()" itself a derivative work owned by either 
> Alice or Bob, even if Bob statically linked it with Alice's program.

The GPL provides an exception for things like syslog() anyway; you can link
to it without triggering even disputable obligations.

> Why are you putting the burden on an over-clever source code compiler 
> to detect derivative works?

Not what I meant.  If Alice's code contains the string "foobar" and so does
Bob's, a compiler might coalesce the two strings into one, in such a way
that the 0x62 in the object file's initialized-data segment could not be
unilaterally attributed to either Alice or Bob.

But in any case my point is that there is no bright line between a
derivative and a collective work.  If Bob's work is a derivative of Alice's,
then we can construct a sequence of alternate hypos by Bob that lead right
up to two separate modules of code, such as this:  Bob interweaves his code
into Alice's code (as in this hypo), Bob adds code to the end of Alice's
procedure, Bob adds new procedures to the end of Alice's module, Bob adds a
new module to Alice's module.

In all cases, Bob's contributions can be separated from Alice's
mechanically, even at the object level (absent coalescence as described
above).  Yet that fact is not determinative of collective work vs.
derivative work.

-- 
I Hope, Sir, that we are not                    John Cowan
mutually Un-friended by this                    cowan at ccil.org
Difference which hath happened                  http://www.ccil.org/~cowan
betwixt us.     --Thomas Fuller, Appeal of Injured Innocence (1659)