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derivative works (was: Licensing question about the BSD)

From: Bruce Lewis
Subject: derivative works (was: Licensing question about the BSD)
Date: 18 Aug 2005 15:17:12 -0400
User-agent: Gnus/5.09 (Gnus v5.9.0) Emacs/21.3

Isaac <> writes:

> On 16 Aug 2005 14:22:25 -0400, Bruce Lewis <> wrote:
> > 
> > Meaning that the original source or object code has not been mutated.
> > In the sense I'm using "modified", a naked statue remains unmodified
> > when clothing is draped over it.  An artist might think differently.
> I would find calling such draping "adapting" to be a stretch of both the
> ordinary and the legal meaning of the work.  Using a statute as a clothing
> rack is adopting but not adapting.  Now if instead you had to twist one of 
> the statutes arms around so that draped clothing would not fall, you've
> done some adapting.

In the ordinary sense, the clothing adapts the art to a new purpose,
changing its character.  The statue isn't a clothing rack.  As to the
legal meaning, I don't particularly care, as my argument doesn't hinge
on that one word.  What I'm saying is that it's unwise to assume that
because you haven't modified the original, that there's no derivative

The U.S. Copyright office agrees with me:

"Sound recording (long-playing record in which two of the
10 selections were previously published on a 45 rpm single)"

"Biography of John Doe (which contains journal entries and letters by
John Doe)"

I'll give Mr. Terekhov's argument more credence when he gets the
copyright office to move those two examples to the "compilation"

> I think AT is on fairly solid ground when it comes to what consitutes
> a derivative work.  His opinion seems consistent with those game console
> court decisions of the late 90s and early 2000s.

Not at all.  That would be true if the game genie case was won on the
basis of no modification happening.  The court found that modification
*was* happening, but decided there was no derivative for other reasons.

The commentary in the opinion about programs that enhance other programs
rarely being derivative works does not mention modification.  I wouldn't
rely on the Terekhov test to decide what is and isn't a derivative work.

Putting the Mona Lisa in a halter top and pigtails while smoking a
cigarette might be a derivative work under the Terekhov test if you
paint directly onto the canvas.  Put glass over the Mona Lisa before you
paint, and it's a compilation under the Terekhov test.  I don't buy it.

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