I agree with the outcome of the book and magazine examples, but for a completely different reason: one involves copying the work of both authors and the other does not. I'm going to use these examples as an excuse to discuss some of the issues to which I believe people refer when they talk about "contracts" v. "[something else]". I'm not my self comfortable that "contract" is the right word to use for one side of this contrast (I believe that, analytically, contract law has a role in both of these), but I'll use it here because I don't see another term readily at hand.
To set up some terminology, let's assume that the two parties are an author of some material and a user who wants to do something with that material. I believe that the "contract" situation is one in which it is necessary to get the user's specific agreement to the contract terms - something by which they have manifest their assent to being obligated to the terms of the agreement such as might be indicated by signing a paper document or clicking an 'accept' button. Without such assent, there is no legal mechanism that the author can prevent the user from doing the thing stated in the agreement. In the "something else" case, the thing that the user wants to do is something about which there is a public law (as contrasted with the private law of a contract) that says that the user can't do the thing without the author's permission. The public law of interest, of course, is copyright law. So, if what the user wants to do <includes> anything that is an exclusive right of the author under the copyright law, then the author can legally prevent that behavior of the user, even if the user has never agreed with the author to take on any obligations to the author. I emphasize the word <includes> to point out a detail that I think is getting lost in some discussions. In the book example: "affect the distribution of Dean Koontz books that happened to be sitting on the same book shelf " - without that sort of separate "contract" that I've described, this is true. But that fact has nothing to do with how the relationship between the book. It is because your hypothetical does not include doing anything that is an exclusive right of King - you have not assumed that the person distributing Koontz also wants to do something that needs King's permission, such as copy and distribute King's book. For example, King might offer the permission to copy and distribute his book on the condition that the person doing so not distribute Koontz's book. Note that in the magazine example, permission IS required because the hypothetical assumes copying and distribution of stories by both authors. The significant difference between the two is the copying, not whether a collective work is protected under the copyright law. -- Scott ______________________________ Scott K. Peterson Corporate Counsel Hewlett-Packard Company One Cambridge Center Cambridge, MA 02142 phone: 617-551-7612 mobile: 978-764-8615 [EMAIL PROTECTED] -----Original Message----- From: David Johnson [mailto:[EMAIL PROTECTED]] Sent: Wednesday, January 15, 2003 10:17 PM To: [EMAIL PROTECTED] Subject: Re: "Derivative Work" for Software Defined On Wednesday 15 January 2003 07:14 am, PETERSON,SCOTT K (HP-USA,ex1) wrote: > That is not the same thing as saying that D has the positive > legal right to combine anything that D wants with X's material when > distributing X's material. To distribute both X's material and Y's > material, D requires permission of both X and Y. X could decide to decline > to give that permission for the case where X's material was distributed on > the same medium with Y's material. Reading a later message from you, I finally see what the '+' means in your "A+B". It means a separate object C that is derived from both A and B. This isn't aggregation. I believe the proper term is "compilation", which is a form of derivative work. For example, Stephen King couldn't place a copyright-based license on his books that would affect the distribution of Dean Koontz books that happened to be sitting on the same book shelf. Neither could he do it for a story of his published in a magazine. But he *could* use a copyright-based license that affected the distribution of the magazine, which also happened to contain a story by Dean Koontz. A magazine is an example of a compilation. It's what you would call "A+B". The copyrights of the individual stories and articles cannot affect each other, but they could affect the magazine. A+B Magazine requires the permission of both author A and author B to publish their stories. But A+B Magazine does not need the permission of A in order to publish B, or vice versa, without a contract in place to the contrary. On the other hand, A could use a copyright-based license that would affect the distribution of A+B Magazine. Such a license might force the magazine not to publish both stories in the same issue. The GPL section two is addressing such a situation. It states that the license does not cover other articles in the magazine, but that it does affect the magazine. -- David Johnson ___________________ http://www.usermode.org pgp public key on website -- 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