Ketil Malde wrote:
Jamie Webb <[EMAIL PROTECTED]> writes:
A patch is considered a derived work,
Are you sure?
Not absolutely. There appear to be no precedents specifically relating
to diffs. The similar cases that get cited found that third party Duke
Nukem levels are considered derived works, and likewise fan fiction
relating to films and books, even though no part at all of the
original was copied. The argument is that the new works would not have
been possible without the originals, and hence that the 'spirit' of
the original was in some sense derived from.
Impressive. I've always thought that copyright covered the literal
work, and not its "spirit" or ideas or such. An interesting
consequence of this is that parodies are only possible if the parodied
part agrees to it. Wow. How did the creative communiteis paint
themselves into such a legal corner?
That would be correct if the courts didn't uphold "The Doctrine of Fair
Use". Parody works are considered "Fair Use" and thus the one last
bastion of free creativity.
Control of derivatives was never the intent of *copy*right law, and you
are correct, it really is painting us into a corner.
By the way, the project in my signature I'm currently working on is
related to this area. I'm just getting started, but I'm hoping to
eventually encourage writers to publish "open source" story universes.
And - doesn't this mean that any program developed with Visual Studio
and requiring Windows to run, is partial copyright Microsoft? It
seems fairly analogous to me.
It isn't. Visual Studio is seen as a tool designed for the purpose, and
is unattached from the final output. Even the crappiest written program
can still compile in another windows-based compiler. Not to mention
that Microsoft has no claim to many of the languages (C, C++), or given
away its claim (ECMA C#).
As for a suit, even were patches not considered derived works, the law
set great store by 'accepted practice' and the actions of the
'reasonable man'. Posting a patch against a GPLed program to a public
list dedicated to discussing that program would cause most in the
industry to infer that the patch was GPLed, so we can expect a judge
to agree. But, it could be expensive.
Of course most would infer that. A lot of people infer that stuff on
they find on the internet is theirs to use. I'm not sure public
perception defines reality, though. :-)
The beauty and flaw of democracy is that given enough years public
perception does define the reality of law. It would be interesting to
push a platform that the Internet is inherently "copyleft" and viral and
that posting anything willingly to the Internet releases it to something
like the GPL or CC by-sa.
I would hope that users who incorporate such a patch would be in "good
faith", and not liable for damages, but I also think that if there is
no explicit licensing, the copyright holder could require the patch be
removed. (I may be totally off base here, but if not, this could be
an argument for the "pull" model rather than "send" -- "pull" would of
course get its changes from a repository that includes the licencing
information, the "send" is just the patch.)
Ah, but "darcs send" (in most instances) performs an inventory (and
motd?) "pull", and supposedly, somewhere along the line in order to
create the patch in the first place, the user must have done a "darcs
get" (or "darcs init"/"darcs pull").
--
--Max Battcher--
http://www.worldmaker.net/
The WorldMaker.Network: Support Open/Free Mythoi. Read the manifesto @
mythoi.com
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