See also the Second Circuit's decision in Woods v. Bourne ( http://caselaw.lp.findlaw.com/data2/circs/2nd/947421.html ), in which the appeals court held that a publisher with license to authorize derivative works was insulated by 17 U.S.C. 304(c)(6)(A) from reversion to the author of royalties due to movies and television programs created before termination. However, the publisher retained no rights in various radio performances of sound recordings, in which the publisher's contribution to the _arrangement_being_recorded_ (up to and including a rewrite of the bass line in the piano part) did not rise to the level of originality needed to create a derivative work. (Sound recordings are derivative works but form a special exception to the Exception, since "the right to perform a song contained in a sound recording belongs to the owner of the copyright in the song".)
Mapping this over to software space, it appears to me that compiling to object code, whether or not it creates a "derivative work", is like the creation of a sound recording in that critical rights in the result remain vested in the creator of the original rather than in the entity that did the compiling. Meanwhile, bug fixes (before or after termination) probably do not rise to the level of originality required to create a fresh derivative work. So if faced by 17 USC 203 termination of an open source license, one would have to make significant enough changes to make a real derivative work before termination, and then restrict oneself thereafter to bug fixes and similar changes that do not rise to the level of "independent creation". So 17 USC 203 isn't totally toothless with respect to open source, but it's hardly the bugbear Glenn and Sean feared. Right, guys? Cheers, - Michael
