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Re: gens License Check - Non-free

On Tue, Jun 15, 2004 at 08:35:23PM -0400, Brian Thomas Sniffen wrote:
> Anthony DeRobertis <anthony@derobert.net> writes:
> > On Jun 14, 2004, at 22:25, Brian Thomas Sniffen wrote:
> >>
> >> I'm not sure I buy the argument that WinFoo is a derivative work of
> >> Windows.  Surely WinFoo, shipped with Windows, is.
> >
> > Either it is or isn't. You create a derivative work (or don't create a
> > derivative work) when you create a work.
> Yes.  And this picture of a Gnu is not a derivative work of Emacs.
> But if I package it with Emacs as the Emacs icon, the combination
> IconEmacs is a derivative work of Emacs -- and of my iconic gnu.

How so? To quote Title 17 Sec. 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''.

Replacing a PNG file doesn't fit that definition at all. We have
"recast, transformed, or adapted" neither EMACS nor your icon. Neither
has actually changed. Changing that icon isn't an original work of
authorship, either. The closest we've come is to creating a compilation:

	A ''compilation'' is a work formed by the collection and assembling
	of preexisting materials or of data that are selected, coordinated,
	or arranged in such a way that the resulting work as a whole
	constitutes an original work of authorship. The term ''compilation''
	includes collective works.

But once again, a compilation needs to be original. Which replacing a
single icon most probably isn't.

Also, 103(b):
	 The copyright in a compilation or derivative work extends only to
	 the material contributed by the author of such work, as
	 distinguished from the preexisting material employed in the work

"the material contributed by the author of such work", i.e., nothing.

(Of course, the icon itself could be an original work of authorship. But
we're not talking about that).

> Taping, no.  But if I'm distributing WinFoo with wine, such that
> they're installed and working together -- say, some ATM software and
> an OS -- then either that ATM package is a compilation which includes
> Windows, and so is a derivative work, or is not and is instead
> including Wine and a derivative work of that.

Ummm... You've switched between Wine and Windows several times above; I
assume that wasn't intended... I'll just read everything as "Windows."

First, compilation != derivative work, AFAIK.

Second, it can't be a compilation because installing Windows software on
Windows isn't an original work of authorship. Also, the rest of 103(b):

	The copyright in [a compilation] is independent of, and does not
	affect or enlarge the scope, duration, ownership, or subsistence of,
	any copyright protection in the preexisting material

Even if somehow install ATM Software on Windows creates a compilation,
as long as I have appropriate licenses to Windows and the ATM software,
it doesn't matter; Sec. 106 doesn't lsit creating a compilation as one
of the exclusive rights of a copyright holder.

> > Being derivative is a property of a work, not a property of its
> > distribution.
> And it is that property of the combined work to which the FSF objects
> -- no matter how tricky the instructions are about who does the combination.

It is to be expected that the FSF argues for as broad an intepretitation
of the GPL as they can without breaking out laughing...

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