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Re: Bye - Bye , open source derivative works litigation

From: RJack
Subject: Re: Bye - Bye , open source derivative works litigation
Date: Fri, 12 Feb 2010 13:44:02 -0500
User-agent: Thunderbird (Windows/20090812)

Hyman Rosen wrote:
On 2/11/2010 8:25 PM, amicus_curious wrote:
So taking someone else's work and republishing it as a whole is not
 joint authorship? You are in an untenable position to be sure!

A joint work is created through the intention of all authors to form
it. Without such intention, the work is not joint, it is collective,
with copyright on each component owned by the author of the
component, and copyright on the arrangement owned by the arrangers. For modifications made to existing components or their arrangement,
copyright is owned by the original author and as well by the author
making the change, as a derivative work.

In fact, the concepts of derivative work and joint work are in
certain ways opposite. A joint work is created through intention of
co-authors, and each author has full rights to the work, while a
derivative work is created with permission from the original author
and then copyright in the result is held by both authors, and that
work can be copied and distributed only with permission of both

The GPL speaks of modifications as derivative works. In no way does
it speak of joint works, and therefore authors who use it as the
license for code they produce have indicated that they are not
creating a joint work.

The procdures for acceptance and approval at the BusyBox development site:

determine how the contributing authors works are jointly committed to
the single program called BusyBox. The GPL has nothing to do with it.
The joint authors may license their code under any license they wish but
that fact doesn't prevent the formation of a joint work.

The joint work may be released under the GPL to the public but that fact does not change the reality that the GPL is unenforceable as a contract and is preeempted by 17 USC 301(a).


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