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Re: Can CC BY 2.0 be upgraded to 3.0 ?

Tollef Fog Heen <tfheen@err.no> writes:

> No.

>   #! /bin/sh
>   echo hello world

> is not a work.  It is not copyrightable.  It does not bring anything new
> and original into the world.  Norwegian copyright law talks about «work
> threshold» as in a bar you need to clear for something to be
> copyrightable.

> I believe this is what Russ is talking about.  (Russ, please correct me
> if I'm wrong here.)

Correct, that's what I'm getting at, but I ran out of words to try to find
a good way to explain it.

Maybe an analogy works better.  Suppose that I have a hugely complex Perl
program.  I modify the first line of that Perl program from
#!/usr/bin/perl to #!/usr/local/bin/perl.  That modification itself is not
copyrightable.  It doesn't contain any creative or original work in the
sense of copyright law.

Is the result a derivative work?

My argument, and I think Paul's, is that it's not a *derivative* work.
It's still the *original* work, with a trivial modification.  The word
"derivative" is defined fairly uniformly in the legal bits I was reading
as being a transformation, performance, or other substantive modification
of an original work that adds original creative content or interpretation.
I believe that means that, to be a derivative work, it has to bring new
copyrightable material to the table, not just trivial changes.

Another analogy: a novel is clearly a creative, original work.  If I take
that novel and repaginate it mechanically, is that a derivative work of
the original novel?  Or is it just the same novel, repaginated?

Normally this doesn't matter at all, since all normal free software
licenses give people all of the same rights on the original work as on
derivative works (except that some additional requirements may be placed
on derivative works, such as documentation of changes).  However, the
CC-BY-2.0 license is fairly unique in that you can do things with
derivative works that you're not (at least obviously) allowed to do with
the original work.

Another general principle of law, as I understand it, is that there is a
bias, in interpreting contracts, towards having all the words of the
contract mean something.  In other words, one should generally assume word
choice is for a reason.  It would have been easy for CC-BY-2.0 to let you
relicense the original work or any derivative work, but that's not what
the license said.  That seems to imply that some distinction was being
drawn, and if the original work is trivially also a derivative work, that
destroys that distinction.

Russ Allbery (rra@debian.org)               <http://www.eyrie.org/~eagle/>

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