On Tue, Feb 19, 2013 at 10:16 PM, Richard Fontana <fontana@sharpeleven.org> wrote:
Good news, everyone!
copyleft-next 0.2.0 has been released!

https://gitorious.org/copyleft-next/copyleft-next/blobs/raw/master/Releases/copyleft-next-0.2.0


I tried, oh I tried so hard, to figure out how to clone and push back changes, but I keep getting error messages about not having run git update-server-info on the server, or not properly identifying a remote repository. So I'm giving up for today.

So, anyway, my comments:

"This License does not exclude or limit any rights You have under applicable law."  I agree that this is now fairly mystifying, begging the question "why would I think otherwise?"  But it started out as a preservation of fair use rights and as the license is currently written I believe that you have abrogated, some might argue deliberately, uses that would otherwise be considered a lawful use.

So I digress to the definition of Derived Work. I agree that the defined term should be "Derived Work" to avoid any confusion between the defined term and the term of art "derivative work." However, I also believe that a Derived Work should maintain the balance of what copyright law protects and what it doesn't protect. Therefore, "Derived Works" should only describe what are derivative works, or at least what would otherwise be infringements, but the current definition goes well beyond that now.

My beefs are with the words "based on" and "transform." In the former case, this phrase is so vague it could intrude into the area of what one would consider the idea side of the idea-expression dichotomy.  I could think "gee, GNU Mailman has nice features, I'm going to create another project with the same features" and it is arguably "based on" GNU Mailman even though it would not be either a derivative work or a copyright infringement.

The word "transforms" is an attack on fair use. That is, "transformative" is a term of art that is one of the hallmarks of a fair use; because a work is "transformative" it may be a fair use. To therefore claim that a work that "transforms" is a "Derived Work" strips away a defense that the modification is a fair use.

I realize that "based on" and "transform" are in the definition of derivative work in the U.S. Copyright Act, but the terms as used here are not tied to the definition of "Derived Work" and so I read them here much more expansively. At some point in the past the definition of "Derived Work" included "such that copyright permission is required," which I think is why I was ok with it in the past, and I'm not sure why it came out. Alternatively, you could tie the definition of "Derived Work" expressly to that of a derivative work, e.g., as "a work of authorship that is a derivative work because it copies from, modifies, adapts, is based on, transforms, translates or contains all or part of My Work."  But I think I prefer just preserving "such that copyright permission is required."

If you define "Derived Work" so that it is only covers works that would be a copyright infringement absent the license, then you should remove the "This License does not exclude" paragraph.  I say that, but I'm not sure what would happen if you kept this paragraph when there is an over-expansive definition of "Derived Work"; I think the intent is ambiguous.  So I guess that means take it out either way, but I think you need to change the definition of "Derived Work" to be sure it will not be interpreted as including uses that would otherwise be lawful. But if you meant to capture lawful uses in the definition of "Derived Work," that's a whole different discussion --

Para. 5: "When distributing a Covered Work, You may not impose further restrictions on the exercise of [rights in] _the grants given for_ the Covered Work [granted under this License]."  Just tightening up the language a little. It was the word "rights" that bothered me, I don't think the licensee has "rights" but rather has permission to do what otherwise he or she could not do.

Para. 7: "to the extent of Your copyright in the Patch." I think you can eliminate this clause as redundant; that's all that the person giving the patch can grant anyway, whether you say it or not.

Para. 7: "This condition does not negate the other conditions of this License."  I didn't know what that was supposed to accomplish. 

Warranty and Limitation of Liability: You've tried to carry these down to distributors, but what if the distributors don't want the advantage of the clauses? What if, as my business model, for a fee I am offering a warranty and a higher limitation of liability that you have offered?  Maybe add a "unless waived" provision?

Pam