Re: How long is it acceptable to leave *undistributable* files in the kernel package?

[Michael Poole <mdpoole@troilus.org>]

Raul Miller writes:

> On Thu, Jun 17, 2004 at 03:46:14PM -0300, Humberto Massa wrote:
>> But there is. You see, in Law, when you enumerate things, you are 
>> separating things. (dichotomy = two separated in Greek)
>
> I'm writing in english, not greek.
>
> If you think there is some legally relevant document which means that a
> collective work can't be a derivative work (for example, if you think that
> an anthology can't be a derivative work based on the contained stories,
> or that a subsequent edition of that anthology can't be a derivative
> work of an earlier edition), please cite that specific document.

This is not the way the law works.  The presumption is not "this work
is a derivative work because Raul Miller claims it is."  Humberto has
cited reasons why the kernel tarball (or binary images) should be
considered a compilation rather than a derivative work.  You have only
claimed that they should be a derivative work, without referring to a
"why."

http://digital-law-online.info/lpdi1.0/treatise6.html discusses the
differences between derivative works and compilations, and quotes a
congressional report that elaborates:

  Between them the terms "compilations" and "derivative works" which
  are defined in section 101, comprehend every copyrightable work that
  employs preexisting material or data of any kind. There is
  necessarily some overlapping between the two, but they basically
  represent different concepts. A "compilation" results from a process
  of selecting, bringing together, organizing, and arranging
  previously existing material of all kinds, regardless of whether the
  individual items in the material have been or ever could have been
  subject to copyright. A "derivative work," on the other hand,
  requires a process of recasting, transforming, or adapting "one or
  more preexisting works"; the "preexisting work" must come within the
  general subject matter of copyright set forth in section 102,
  regardless of whether it is or was ever copyrighted. {FN31:
  H.R. Rep. No. 94-1476 at 57}

See also http://www.copyright.gov/circs/circ14.html, which remarks
both that the whole of the derivative work must represent an original
work of authorship, rather than an arrangement of distinct works, and
that mechanical (non-creative, ergo non-copyrightable) transformation
of the original does not make a derivative.

Michael