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Re: RES: What makes software copyrightable anyway?

On 5/20/05, Michael K. Edwards <m.k.edwards@gmail.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.

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.]


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