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Re: Bye - Bye , open source derivative works litigation

From: Alexander Terekhov
Subject: Re: Bye - Bye , open source derivative works litigation
Date: Thu, 11 Feb 2010 20:21:16 +0100

Hyman Rosen wrote:
> On 2/10/2010 6:17 PM, Alexander Terekhov wrote:
> > One *SINGLE* (consisting of a separate unique whole) project is not a
> > joint work although it produces a (single) (combined) "larger program"???
> Correct. A joint work is created only when all of its

Why didn't Erik Andersen fork the busybox to create his own non-joint
version of busybox?

> authors agree and intend to do so. 

They "agree and intend to do so" by posting contributions to joint work
projects like busybox you retard Hyman.

"Some aspects of the statutory definition of joint authorship are fairly
straightforward. Parts of a unitary whole are "inseparable" when they
have little or no independent meaning standing alone. That would often
be true of a work of written text, such as the play that is the subject
of the pending litigation. By contrast, parts of a unitary whole are
"interdependent" when they have some meaning standing alone but achieve
their primary significance because of their combined effect, as in the
case of the words and music of a song. Indeed, a novel and a song are
among the examples offered by the legislative committee reports on the
1976 Copyright Act to illustrate the difference between "inseparable"
and "interdependent" parts. See H.R.Rep. No. 1476, 94th Cong., 2d Sess.
120 (1976) ("House Report "), reprinted in 1976 U.S.C.C.A.N. 5659, 5736;
S.Rep. No. 473, 94th Cong., 2d Sess. 103-04 (1975) ("Senate Report ").3

The legislative history also clarifies other aspects of the statutory
definition, but leaves some matters in doubt. Endeavoring to flesh out
the definition, the committee reports state:

[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....

House Report at 120; Senate Report at 103 (emphasis added). This passage
appears to state two alternative criteria--one focusing on the act of
collaboration and the other on the parties' intent. However, it is hard
to imagine activity that would constitute meaningful "collaboration"
unaccompanied by the requisite intent on the part of both participants
that their contributions be merged into a unitary whole, and the case
law has read the statutory language literally so that the intent
requirement applies to all works of joint authorship. See, e.g.,
Weissmann v. Freeman, 868 F.2d 1313, 1317-19 (2d Cir.1989); Eckert v.
Hurley Chicago Co., Inc., 638 F.Supp. 699, 702-03 (N.D.Ill.1986).


In this case, appellant contends that Judge Haight's observation that
"Childress never shared Taylor's notion that they were co-authors of the
play" misapplies the statutory standard by focusing on whether Childress
"intended the legal consequences which flowed from her prior acts."
Brief for Appellant at 22. We do not think Judge Haight went so far. He
did not inquire whether Childress intended that she and Taylor would
hold equal undivided interests in the play. But he properly insisted
that they entertain in their minds the concept of joint authorship,
whether or not they understood precisely the legal consequences of that
relationship. Though joint authorship does not require an understanding
by the co-authors of the legal consequences of their relationship,
obviously some distinguishing characteristic of the relationship must be
understood in order for it to be the subject of their intent. In many
instances, a useful test will be whether, in the absence of contractual
agreements concerning listed authorship, each participant intended that
all would be identified as co-authors. Though "billing" or "credit" is
not decisive in all cases and joint authorship can exist without any
explicit discussion of this topic by the parties,7 consideration of the
topic helpfully serves to focus the fact-finder's attention on how the
parties implicitly regarded their undertaking. "


P.S. "It is just like a suit to enforce a copyright license, which
arises under state law rather than under the Copyright Act. "

Hyman's lovin'

P.P.S. "the registered work is a compilation"

Hyman's lovin'

(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

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