[License-discuss] Idea for time-dependent license, need comments

[John Cowan]

Lawrence Rosen scripsit:

> It is a nice idea in principle, but it falls flat in practice. Courts
> usually require more than just a claim of joint authorship. They
> demand a contract, or at least some obvious manifestation of intent,
> to create a joint work. Lots of these court cases deal with rock bands
> that broke up.

I bet those were about the rights to thorough-composed songs, however.
The case of a jazz band and the rights to recordings of live performances
might be a different story.  I think it would be pretty hard to claim
such a performance was not a joint work -- it practically tracks the
definition word for word.

> I am aware of no FOSS project -- particularly any that uses a
> contributor agreement or membership agreement -- that would survive
> a court test for joint authorship.

Well, if you were a judge, how would you rule if Alice had supplied
a non-de-minimis patch to Bob's program and Bob had accepted it and
republished the work with it?  Looks like a contract to me, admittedly
a parol one (but plenty of jointly authored books seem to have no more
than that), and Alice at least obviously intended her work to merge with
Bob's, as her work is incapable of standing alone.  If Bob's intent was
different, what could it have been?

An example that comes to mind is the book _Intelligent Life in the
Universe_, by I.S. Shklovskii and Carl Sagan.  The first author wrote the
book in Russian, and someone translated it into English, presumably as a
work for hire.  Then the second author heavily annotated the translation,
adding sections, paragraphs, sentences, and even individual words
interleaved with it.  He put an inverted delta sign at the beginning
of each such insertion and a delta sign at the end, showing the exact
boundaries of his contributions.  The result went back to the first
author, who then annotated the result again with new text between delta
and inverted delta, and so on until the authors were mutually satisfied,
always keeping the boundaries clear.

Now suppose that there had been no written contract between the authors.
Would this prima facie have been a joint work, or a collective one?
The original work stood alone; Sagan's first-order contributions did not,
nor did any of the following contributions in later rounds.  The intention
was evidently to create a single new work.  The authors never quarrelled,
fortunately, so nobody ever had to decide.

-- 
Using RELAX NG compact syntax to        John Cowan <cowan at ccil.org>
develop schemas is one of the simple    http://www.ccil.org/~cowan
pleasures in life....
        --Jeni Tennison                 <cowan at ccil.org>