[License-discuss] Companies that encourage license violations

[Pamela Chestek]

On 9/8/2015 5:14 PM, Kevin Fleming wrote:
> The genesis of my statement (which I purposely left ambiguous because
> IANAL and IANYL and many here are) is that a set of source files that
> do not have any copyright/license statements included and a set that
> do have such statements included could easily be considered *different
> works*, because they contain different content. The content difference
> may be immaterial to the usage of the code (it certainly doesn't
> affect compilation or execution of the code), but it's still
> different. It might even be reasonable to claim that the version with
> the statements is a derivative work of the one without the statements,
> even if produced by the copyright holder(s).
Interesting theory. I would say not though, because the addition of the
copyright/license statements are not original enough to make the new
work with the addition or omission a derivative work, and also for the
reasons you mention, that they don't actually affect the work. It would
be like saying that a second edition, with new title page listing the
new year of publication and different publisher, would be a derivative
work of, or a different work from, the first edition. Without doing any
legal research (which is guaranteed to get me into trouble), my guess is
that courts have decided that insignificant changes don't make it a new
work.[1]
> Given that, if someone has a copy of the version without such
> statements, I'd personally recommend (and certainly do in my day job)
> that finding another copy elsewhere that has such statements is
> immaterial. This usually doesn't matter when the discussion occurs
> before any potentially infringing activity has occurred, since we can
> just tell the user to go download the copy with the license
> statements, but after the fact I'd be quite surprised that
> demonstrating the existence of the other copy would be sufficient.
This is one of my favorite subjects, whether to have a license you need
to know that it existed at the time you copied or not. I don't think so,
the copyright owner put the work out there with a promise not to sue, so
I don't know why I would need to be aware of the promise to claim the
benefit of it.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com

[1] Ok, I lied. It rang a bell and I looked it up. Not quite on all
fours but in the recent Creative Commons case where the photographer
argued that cropping his photo created a derivative work, the court said
"Any discernible cropping appears to be 'so minor and insubstantial that
as a matter of law it falls within that degree of latitude afforded
licensees to alter a copyrighted work to suit their style or the medium
in which the work is presented.'" /Drauglis v. Kappa Map Group, LLC,/
2015 U.S. Dist. LEXIS 108992, *21 (D.D.C. Aug. 18, 2015).
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