It's an intriguing idea, Dan, but your initial point that a derivative work triggers the compliance with "FOSS" seems only partially correct. A public re-distribution of the original work, for example, would trigger "compliance" as well...to the extent that compliance issues arise.
In your second paragraph, you indicate that the abstraction-filtration-comparison test established by the Second Circuit is aimed at determining what constitutes a derivative work. Are you confident of this claim? There may be a principled basis for your position, but laying out the test does not quite sufficiently make that point. The test is primarily targeted for a different purpose- - at least in the software context (all of these tests with various names, AFC, idea/expression dichotomy and so on seem to aid the court in separating ideas from expression to determine what's left of the alleged infringing work once the tests are applied...on the track toward resolving an infringement claim). Even assuming a court has the wherewithal to abstract and filter out ideas from expression in the literal and non-literal aspects of a computer program, I am not sure that process would be relevant to open source. I doubt that there would be the over-reaching by an open source copyright holder that is generally required to reach this phase of dispute since the purpose of these tests, ostensibly, is to allow the alleged infringer to go about his or her way if all that the court has before it, after application of the pertinent test, is uncopyrightable expression; it would be odd to see an open source developer attempt to make claim to that. Admittedly, it may be intriguing to determine whether these idea/expression tests are suitable for derivative software work analysis, but courts seem to be following a different track. At issue for courts, it seems to me, is a fuss over degrees of "modification;" namely, whether a modification is too trivial/simplistic or "too" transformative to be deemed derivative (imagine a scale with the balance being the derivative measurement). The MODEL CODE for the OSD will attempt to set out this distinction, we hope. rod Rod Dixon Visiting Assistant Professor of Law Rutgers University Law School - Camden [EMAIL PROTECTED] http://www.cyberspaces.org/dixon/ My papers on the Social Science Research Network (SSRN) are available through the following url: http://papers.ssrn.com/author=240132 ----- Original Message ----- From: "Ravicher, Daniel (x2826)" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Tuesday, November 12, 2002 10:36 AM Subject: "Derivative Work" for Software Defined > Free / Open Source Software ("FOSS") licensing relies critically on the > concept of > derivative work since software that is independent, i.e. not derivative, of > FOSS need not abide by the terms of the applicable FOSS license. Therefore, > one > is left to ask, just what is a "derivative work?" This article > (http://www.pbwt.com/Attorney/files/ravicher_1.pdf) addresses that question. > Your comments and thoughts would be most appreciated. > > Best, > --Dan > > Daniel Ravicher > Patterson Belknap Webb & Tyler LLP > 1133 Avenue of the Americas > New York, NY 10036 > 212.336.2826 direct > 212.336.7900 fax > mailto:dravicher@;pbwt.com > http://www.pbwt.com/ > > -------------------------------------------------------------------------- ---- > Privileged/Confidential Information may be contained in this message. If you > are not the addressee indicated in this message (or responsible for delivery > of the message to such person), you may not copy or deliver this message to > anyone. In such case, you should destroy this message and kindly notify the > sender by reply email. Please advise immediately if you or your employer > do not consent to Internet email for messages of this kind. > > ============================================================================ == > > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
