Procedure for using an approved license
jcowan at reutershealth.com
Mon Oct 21 15:09:09 UTC 2002
Rod Dixon, J.D., LL.M. scripsit:
> There is also the questionable premise that a software license may
> lawfully extinguish the floor and ceiling of derivative works...i.e. under
> copyright law some "modifications" need no permission from the copyright
> holder because they are fair uses, other "modifications" need no permission
> from the copyright holder because they are transformative and somewhere
> between those two extremes you'll find derivative works.
I suppose you mean "infringing (absent a license) derivative works". This
terminology is very clumsy, but at least it gets fair use etc. into the
right part of the picture: defenses against infringement.
But in any event, the statutory definition of "derivative work" employs
the term "modifications" as primitive:
A "derivative work" is a work based upon on or more preexisting
works, such as a translation, [other examples omitted] or
any other form in which a work may be recast, transformed, or
adapted. A work consisting of editorial revisions, annotations,
elaborations, or other *modifications*, which as a whole,
represent an original work of authorship, is a "derivative work".
> a software license uses the term "modification" to tread on the shoulders of
> transformative works or to control what is or may be viewed as fair uses,
In these cases, the question is not whether the unauthorized-by-the-license
derivative work is really a derivative work; it is whether it infringes or not.
If it is fair use, including transformative use, it does not infringe.
IANAL, TINLA, obviously.
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