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<div class="moz-cite-prefix">On 9/8/2015 5:14 PM, Kevin Fleming
wrote:<br>
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<blockquote
cite="mid:CAE+Udor2+ZxxJ1zDAKHAzaaJjJrWVDq-0vhDRTBz7LaDJ-Hsyw@mail.gmail.com"
type="cite">
<div>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).<br>
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</blockquote>
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]<br>
<blockquote
cite="mid:CAE+Udor2+ZxxJ1zDAKHAzaaJjJrWVDq-0vhDRTBz7LaDJ-Hsyw@mail.gmail.com"
type="cite">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.</blockquote>
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.<br>
<br>
Pam <br>
<br>
<div class="moz-signature">Pamela S. Chestek<br>
Chestek Legal<br>
PO Box 2492<br>
Raleigh, NC 27602<br>
919-800-8033<br>
<a class="moz-txt-link-abbreviated" href="mailto:pamela@chesteklegal.com">pamela@chesteklegal.com</a><br>
<a class="moz-txt-link-abbreviated" href="http://www.chesteklegal.com">www.chesteklegal.com</a><br>
<br>
[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.'" <i>Drauglis v. Kappa Map Group, LLC,</i> 2015 U.S.
Dist. LEXIS 108992, *21 (D.D.C. Aug. 18, 2015).<br>
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