On 5/8/05, Raul Miller <[EMAIL PROTECTED]> wrote: [snip] > The only time a collective work is not a derivative work is when the > the collective work lacks sufficient originality under copyright law > to be granted separate copyright protection.
This is not true under the Berne Convention or under 17 USC as I read them; indeed, the term "collective works" and its superset "compilations" appear to be explicitly reserved in 17 USC 101 (1976 and later) for classes of "original works of authorship". As I discuss below, there are considerable grounds for believing that the category "derivative works" is completely disjoint from "collective works". Is there a lawyer in the house? [snip] [stuff I wrote about Quagga -> net-snmp -> libssl] > This doesn't seem to be put together logically. Appearing in VM > seems to me to fall under mere aggregation unless there's also > some specific use of non-exported functionality. Evidently you missed or have forgotten the origin of this thread, which still retains "Urgently need GPL compatible libsnmp5-dev replacement" in its title. Quagga is not a virtual machine, it is a routing daemon. (I can understand your being misled by my poor usage of "running inside".) It can be linked against the net-snmp library in order to publish routing tables to snmpd; in the Debian build, that pulls in libssl (against which net-snmp is linked to provide SNMP v3 functionality), which (in the FSF's reading, not mine) triggers a GPL violation. Automatically terminating the GPL with respect to Quagga, etc., etc. [snip] > This seems to be based on a concept of "derivative works" which > is at odds with that held by the U.S. Copyright office. > > I highly recommend you read circular 14, and pay particular > attention to the examples which use the phrase "based on". Let me get this straight. You are offering me, as sufficient legal precedent to outweigh the text of the Berne Convention and of 17 USC (in which "compilations" and "derivative works" are always both stated when both are meant), ... an instruction sheet for filling out a copyright registration form? Even if you interpret that document correctly to say that "collective works" \subset "derivative works" (which I do not immediately see grounds to read into it), what status as a legal precedent to you expect it to have? Hmm, ten minutes with FindLaw. First hit on "collective work" for the Ninth Circuit: Columbia Pictures v. Krypton ( http://caselaw.lp.findlaw.com/data2/circs/9th/9455816.html ), from which I offer you section VII.B. It cites several authorities to demonstrate that television episodes offered individually for broadcast or rental remained separate works for the purpose of damage calculations even if the copyright holder offers them only as a complete set -- notwithstanding language in 17 USC 504(c)1 saying that "all the parts of a compilation or derivative work constitute one work". Darn, the key citation Robert Stigwood Group Ltd. v. O'Reilly (2nd circ, cert. denied 1976, meaning that the Supremes looked at it and let it stand) is too old for FindLaw. Oh, that reminds me; you are paying attention to the 1976 boundary, right? For a US Supreme Court case discussing the legislative history of the 1909 and 1976 Copyright Acts, see http://laws.findlaw.com/us/495/207.html . Be careful with this one; even though Stewart v. Abend was a 1990 case, the governing law with respect to the facts was the 1909 Copyright Act, in which the term "derivative work" does not appear. The opinion uses the shorthand "derivative work" for a laundry list of classes of work that appears in Section 7 of that Act, including the word "compilations"; but other provisions of that Act (notably Sections 3 and 24) refer to "composite works or periodicals", and interpretation of the copyright status of a work that falls into both categories would probably be as contentious as Stewart v. Abend seems to have been. The 1976 Act has a much more modern definition-based structure, and is rather easier to interpret. And indeed, the Ninth Circuit has (in Ets-Hokin v. Skyy Spirits 2000, http://caselaw.lp.findlaw.com/data2/circs/9th/9817072.html ) analyzed a case involving copyright on a photograph "through the lens of derivative copyright" (gotta love that Ninth Circuit!), discussing in great detail the criteria for a "derivative work". Both "compilations" and "collective works" come up along the way; note that the term "compilations" is explicitly defined in the 1976 Copyright Act to include "collective works", with the distinction being that only those in which the compiled materials are "separate and independent works in themselves" qualify as "collective works". While the Ets-Hokin court did not rule on the question of whether a disputed work was derivative or collective or both -- a question not at hand in that case -- its citations from both statute and legislative history appear to treat the two categories as disjoint, or at most perhaps capable of overlap but far from concentric. The only comfort I can offer the collective-works-are-derivative-works camp is the use of the phrase "one or more preexisting works" in defining what a derivative work must be "based upon". Make of that what you can; personally, I think it covers the case where a later work inextricably intertwines elements from several source works and thus requires license to create a derivative work from the copyright holder on each. Observe also that the 1988 Berne Convention Implementation Act ( http://www.cni.org/docs/infopols/US.Berne.Convention.html ) had no need to alter provisions regarding derivative works and collective works ("collections", in the Berne Convention, Section 2.5) to reconcile them with the treaty. And the Berne Convention provision regarding "derivative works" (Section 2.3 per the article heading, which is the only place where the term appears) is, in its entirety: <citation article="2" section="3" title="Derivative works"> Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. </citation> Note "a literary or artistic work", "the original work". In the English language this is called the "singular". So the Berne Convention absolutely does not contemplate "derivative works" based on multiple original works. While that is (in my view) a defect in imagination not present in the 17 USC 101 implementation's "one or more preexisting works" (ever seen "Bambi Meets Godzilla"?), I think it makes it absolutely clear that the Berne Convention treats "derivative works" and "collections" as disjoint sets. So, in the absence of something a little stronger than Circular 14 to use as a counter-argument, you are kinda blowin' upwind here. Cheers, - Michael
