On Sat, Feb 23, 2013 at 04:40:03PM -0500, Pamela Chestek wrote:
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.
It intentionally (possibly) goes beyond what are derivative works
under U.S. copyright law (correcting the same confusing element of
GPLv2 that GPLv3 attempted to correct). However, it is not intended to
beyond things that would be copyright infringement.
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,
Yes, just to be clear, that's where I got them from. :)
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.
Oops, I thought you had suggested that I take the "copyright
permission" phrase out. I must have misunderstood, so I'll plan on
restoring it in 0.2.1.
Perhaps the elaborate definition, in its current form, even with the
restoration of the 'copyright permission' phrase, is not so helpful. I
was imitating an approach that had been taken in some other licenses.
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.
Okay.
- RF