Re: RES: What makes software copyrightable anyway?
On 5/20/05, Raul Miller <firstname.lastname@example.org> wrote:
> On 5/20/05, Michael K. Edwards <email@example.com> wrote:
> > As a paraphrase of candidate E, it's erroneous. The grammar, as I
> > read it, doesn't allow it to be anything else. But a licensee is
> > certainly welcome to argue for the presence of an ambiguity there if
> > they have some reason to prefer candidate C.
> One other observation here:
> It's entirely possible that a court would not find this phrasing
> Here's the full text of the definition of "derivative work" from
> 17 USC 101:
> A "derivative work" is a work based upon one or more preexisting
> works, such as a translation, musical arrangement, dramatization,
> fictionalization, motion picture version, sound recording, art reproduction,
> abridgment, condensation, or any other form in which a work may be
> recast, transformed, or adapted. A work consisting of editorial revisions,
> annotations, elaborations, or other modifications which, as a whole,
> represent an original work of authorship, is a "derivative work".
> I believe that we've established that for a work to be "not a derivative
> work" that it's not sufficient to show that it's a collective work.
> And, some of those possibilities -- elaborations, annotations, adapted,
> recast, etc. as well as the bit about "based upon one or more preexisting
> works" all seem to point at the idea that if a computer program as a
> whole is to be granted special copyright protection beyond that of
> its individual components that it is a derivative work of those components.
Horsepucky. A derivative work has to be an "original work of
authorship" under the same standard as a non-derivative work. Putting
three things into a bucket doesn't qualify. A competent court knows
perfectly well what elaborations (e. g., illustrated editions),
annotations (critical editions), adaptation (conversion to a Serious
Screenplay), and recasting (executing a marble sculpture in bronze)
While these categories are exemplary and can be bent to cover
previously uncontemplated forms of work, judges are quite aware that
they do so at their peril. If you think that sister circuits'
critiques of Rano v. Sipa Press are brutal, you should see what
happens when an appeals court gets something wrong and it has
significant public policy impact. What do you think would be the
consequences of holding that a software vendor can win a copyright
infringement suit based on an arbitrary combination of their software
with other independently developed stuff?
While we're on Rano v. Sipa Press (
I'll point out that the part of it that has attracted broad criticism
is section IV.A, holding that Section 203 of the Copyright Act
overrides "termination at will" provisions in state contract law.
Section IV.B, holding that Rano had no grounds for termination for
material breach, is uncontroversial. Here is a paragraph from that
 Here, it is clear that Rano attempted to rescind the agreement.
The question is
whether he had the right to rescind. A breach will justify rescission
of a licensing
agreement only when it is "of so material and substantial a nature
that [it] affect[s]
the very essence of the contract and serve[s] to defeat the object of
[The breach must constitute] a total failure in the performance of the
Affiliated Hospital Products, 513 F.2d at 1186; Nolan v. Williamson
Music, Inc., 300
F.Supp. 1311, 1317 (S.D.N.Y.1969), aff'd sub. nom. Nolan v. Sam Fox
Publishing Co., 499
F.2d 1394 (2d Cir.1974); 3 Nimmer <section> 10.15[A] at 116-18.
The Ninth's use of precedents from the Second, and the citation from
Nimmer, suggest that this is a principle of interpretation of
copyright licenses that applies US-wide. I expect that similar rules
apply elsewhere in the world (IANALIAJ). So we can all forget about
termination for trivial breach, especially if it's inadvertent and
cured at a reasonable stage in legal proceedings.
As for termination at will -- I doubt that any court in any
jurisdiction would permit such a thing with respect to the GPL, but
there is certainly room for a tactical choice of law and venue there.
That's why sane people write "choice of law" provisions (not
necessarily "choice of venue", which is controversial, and often
ignored in "forum non conveniens" proceedings) into their licensing
agreements, not to mention explicit "term and termination" clauses.
The GPL, again pretending not to be a creature of contract law, omits
them, to the great annoyance of people who want to know the rules of
the game the FSF is playing. But the FSF likes it that way -- FUD is
their stock in trade.
> And I think we can agree that, at least within the U.S., this definition
> is a part of copyright law.
> [On the flip side, if it can be shown in court that there's some criteria under
> which all programs are free of copyright law, that's probably a good thing
> for the free software community.]
Have you given more than a moment's thought as to what would come of
that, in the absence of a new and better software rights law to
replace it? For starters, bye-bye GPL, and bye-bye all other open
source licenses -- you publish it, it's public domain. Next, bye-bye
software industry as we know it; and while you might think you would
like that, you may think again when your telephone network and your
electrical grid and your banking system all collapse because half of
the vendors of their ops software can't make the transition to your
Brave New World. I'm not going to bother arguing the rest of the way
to the Death Of Debian (TM). :-)