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Re: New 'Public Domain' Licence

On 6/11/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> P. S. Note, however, that the Linux kernel is a derivative work of
> works by some other authors, such as netfilter/iptables.  I don't mean
> to say that no one but Linus can file a claim of copyright
> infringement or breach of contract against someone who is doing
> genuinely inappropriate things with the kernel and friends (cf. the
> Sitecom and Fortinet cases).  But in order to demonstrate standing,
> they're going to have to identify a work of authorship, not totally
> subsumed in the Linux kernel development process, on which their
> contribution rises to the level of co-author, as Harald Welte did with
> respect to netfilter/iptables.

Let me explain a little further why I think "derivative work" is the
right theory for the relationship between netfilter and the kernel.  I
will start with an excerpt from the House Report's commentary on 17
USC 201:

Two basic and well-established principles of copyright law are
restated in section 201(a):  that the source of copyright ownership is
the author of the work, and that, in the case of a ''joint work,'' the
coauthors of the work are likewise coowners of the copyright.  Under
the definition of section 101, a work is ''joint'' if the authors
collaborated with each other, or if each of the authors prepared his
or her contribution with the knowledge and intention that it would be
merged with the contributions of other authors as ''inseparable or
interdependent parts of a unitary whole.''  The touchstone here is the
intention, at the time the writing is done, that the parts be absorbed
or combined into an integrated unit, although the parts themselves may
be either ''inseparable'' (as the case of a novel or painting) or
''interdependent'' (as in the case of a motion picture, opera, or the
words and music of a song).  The definition of ''joint work'' is to be
contrasted with the definition of ''collective work,'' also in section
101, in which the elements of merger and unity are lacking; there the
key elements are assemblage or gathering of ''separate and independent
works ... into a collective whole.''

The definition of ''joint works'' has prompted some concern lest it be
construed as converting the authors of previously written works, such
as plays, novels, and music, into coauthors of a motion picture in
which their work is incorporated.  It is true that a motion picture
would normally be a joint rather than a collective work with respect
to those authors who actually work on the film, although their usual
status as employees for hire would keep the question of coownership
from coming up.  On the other hand, although a novelist, playwright,
or songwriter may write a work with the hope or expectation that it
will be used in a motion picture, this is clearly a case of separate
or independent authorship rather than one where the basic intention
behind the writing of the work was for motion picture use.  In this
case, the motion picture is a derivative work within the definition of
that term, and section 103 makes plain that in a derivative work is
independent of, and does not enlarge the scope of rights in, any
pre-existing material incorporated in it.  There is thus no need to
spell this conclusion out in the definition of ''joint work.''

The "elements of merger and unity" are not lacking in the kernel, so
there's no way it can be called a collective work (except as regards
the firmware blobs, which are not part of the kernel and not under the
GPL, no matter what the headers in the drivers may say).  Oh, maybe a
driver maintained exclusively by a vendor isn't "merged" enough to
avoid "collective work" status; but the history of periodic rework is
so clear that I don't think a judge would have a hard time accepting
that the kernel is every bit as much a single work of authorship as
Spike Lee's "Malcolm X".

So if netfilter were not accompanied by a component outside the scope
of the kernel, and were intended from the beginning to be "absorbed or
combined into an integrated unit" together with all other kernel
contributors' work, then the only theory on which Harald Welte would
have any claim to authorship would be as co-author of the kernel as a
joint work; and as I wrote before I don't think that claim could
survive the analysis of Aalmuhammed v. Lee.  But since
netfilter+iptables also exists as an independent work of authorship --
at any given time, an update to the netfilter subsystem of the kernel
plus a tightly interlocked userspace tool for control and status
reporting -- Harald does have a claim of co-authorship on that work.

Recall that there was no particular distinction between what are now
known as "collective works" and "derivative works" under the 1909 Act,
which was perfectly happy with this clause (added in 1947):

7. Copyright on compilations of works in public domain or of
copyrighted works; subsisting copyrights not affected

Compilations or abridgements, adaptations, arrangements,
dramatizations, translations, or other versions of works in the public
domain or of copyrighted works when produced with the consent of the
proprietor of the copyright in such works, or works republished with
new matter, shall be regarded as new works subject to copyright under
the provisions of this title; but the publication of any such new
works shall not affect the force or validity of any subsisting
copyright upon the matter employed or any part thereof, or be
construed to imply an exclusive right to such use of the original
works, or to secure or extend copyright in such original works.

Why, then, does the category "derivative works" warrants its own
definition in the 1976 Act?  Judging from the House Report, largely
for the sake of the 203(b)(1) / 304(c)(6)(A) exception to license
termination.  As discussed previously, this exception was largely
intended to remedy situations in which a large work requiring a large
financial investment to produce (such as a film) was held for ransom
by the copyright holder on a small work embedded within it (such as a
song).  In fact, under the 1909 law there were apparently instances
"in which third parties have bought up contingent future interests as
a form of speculation", which is why an author cannot under the 1976
law offer a new license to anyone other than the original licensee (or
the licensee's successor) until the effective date of termination.

The relationship of a song (or perhaps rather an orchestral score) to
a film is precisely the relationship of netfilter to the kernel -- an
independent work of authorship, perhaps written specifically for the
purpose of accompanying the larger work, but with some independent
merit as a creative work (perhaps together with other material that is
part of the independent work but not used in the larger work).  That's
the sort of situation for which the "derivative work" category was

- Michael

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