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Re: gens License Check - Non-free

Anthony DeRobertis <anthony@derobert.net> writes:

> 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:

Part of Emacs has changed.  I have not changed the C source for Emacs,
but I have changed Emacs -- it is a compilation, of documentation, C
code, lisp code, and many other things.  The FSF owns the copyright on
all those components and on the compilation itself.  When I replace
the icon, I have created a new compilation which is a derived work of
the old 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.

Sure it is -- as original as the compilation from which it derived.

Is it not possible to have a work which is both a compilation and a
derived work?

> 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).

No, I am talking about the contribution of compiling a bunch of the
parts of Emacs with this other part, the icon.

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

No, I meant to switch in several places, but I think I did get at
least one wrong.  More explicitly, and I hope correctly:

The author wrote WinFoo.  He had in mind either Windows or wine when
he wrote it.  Let's say Windows.  He has thus created and expressed in
a fixed form (when he installed the program on his windows machine) a
compilation, which consists of WinFoo and Windows.  He might
distribute this compilation, which requires him to have licenses to do
such from the authors of WinFoo (himself) and Windows (MS).  MS won't
give him that license, though they will give him a license to
distribute WinFoo for linking with Windows.

Now let's say I start distributing WinFoo with wine.  This is a
compilation derivative of his compilation.  It's clearly not mere
aggregation, as the two pieces combine to produce a single work.  If I
publish an anthology of short stories, that's a compilation.  If one
of them is written to be a prequel or sequel to another, then it is a
derived work of that other.  If they *all* have that relation to one
another, I'm publishing what's probably a joint work.

> First, compilation != derivative work, AFAIK.

Yes, not all compilations are derivative works.  Some are.  If you
want to press the claim that most software is compilations, that's
fine -- we just end up talking about derivative works of compilations
instead of derivative works of simple original works in a lot of cases.

> 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...

Brian Sniffen                                       bts@alum.mit.edu

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