Subject: RE: how much right do I have on my project, if there are patches by others?
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Sun, 8 Jul 2007 18:43:12 -0700

Perhaps Rick and Matthew are both a little confused? Take a look at
http://rosenlaw.com/oslbook.htm, chapter 2, page 32. 

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen
Author of "Open Source Licensing: Software Freedom and 
                Intellectual Property Law" (Prentice Hall 2004)



> -----Original Message-----
> From: Rick Moen [mailto:rick@linuxmafia.com]
> Sent: Sunday, July 08, 2007 6:00 PM
> To: license-discuss@opensource.org
> Subject: Re: how much right do I have on my project, if there are patches
> by others?
> 
> Quoting Matthew Flaschen (matthew.flaschen@gatech.edu):
> 
> > What if a significant amount of code is removed in the patch?  Could
> > that exceed the limits of fair use?
> 
> These questions seem to indicate some serious confusion, since they
> discuss an issue that has nothing to do with whether one work is
> derivative of another in copyright law.  If you wish to better
> understand how that concept is defined in USA copyright law, your best
> starting point is the CAI v. Altai decision.
> 
> > > Merging it into the original work strikes me as very likely to
> > > create a derivative work -- which then necessarily falls into either
> > > the joint- or collective-work category.
> >
> > Is this really correct?
> 
> Attempting argumentum ad ignorantiam again, Matthew?  Your lack of
> understanding of basic legal concepts really isn't my problem.
> 
> > If a derivative work wasn't coordinated at all with the original,
> > how could it be a joint or collective work?
> 
> "Coordinated with" appears to have no meaning in copyright law,
> so your question is not answerable as stated.  That aside, it is simple
> logic that a collective (not "derivative") work _must_ be either joint
> or collective, as those are mutually exclusive and exhaustive conceptual
> subcategories.
> 
> > Also, some derivative works are illegal.  How does that fit in?
> 
> How can you _not_ understand that the creation and distribution of some
> derivative works is tortious (not necessarily "illegal"), on account of
> copyright violation?  And what on _earth_ does this question have to do
> with the preceding thread?
> 
> Again, I don't know exactly what your problem is, here, but I'm unclear
> on why it's suddently become my job to teach you.
> 
> 
> > > If contributors prove that ye olde primary author has failed to
> > > safeguard their interests or has violated agreements with them, then
> > > nonetheless the primary author may find he/she lacks that option.
> > > Please note that courts tend to measure "interests" for civil-law
> > > purposes in economic terms:
> >
> > So if a contributor uses copyleft for non-pecuniary reasons, they have
> > no recourse, right?
> 
> I said nothing like that.
> 
> Whether one party has committed a tort towards another depends on the
> particular circumstances and the duties that person has _in_ those
> circumstances.  I cited _one_ theory of law that could apply.  Many
> others could, also.
> 
> 
> > > But, anyhow, in that hypothetical, any party (obviously) can fork
> > > rev. n-1, taking over maintenance under copyleft.
> >
> > But that's hardly enough, if the primary author has created a
> > proprietary fork against a major contributor's wishes.
> 
> "Enough" for what?  Facts do not change just because you don't approve
> of them, Matthew.  See .signature block, please.
> 
> --
> Cheers,                                      "Reality is not optional."
> Rick Moen                                             -- Thomas Sowell
> rick@linuxmafia.com