Subject: Re: how much right do I have on my project, if there are patches by others?
From: Matthew Flaschen <>
Date: Sun, 08 Jul 2007 22:09:05 -0400

Rick Moen wrote:
> Quoting Matthew Flaschen (
>> 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.

Perhaps you (or someone else) could explain.  If a patch removes code
from the original program, it must necessarily include some of the code
from that program.  Since the patch is a new work that contains part of
an earlier copyrighted work, I would think it to be derivative (and
possibly fair use if otherwise infringing).  Is that correct?

>>> 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?

I'm not making an argument at all.  You're probably completely right.
I'm simply confused, and seeking clarification.

> Your lack of understanding of basic legal concepts really isn't my problem.

I certainly never said or implied it was.  Feel free to ignore my
questions if you wish.  That said, I do appreciate what I learn on this

>> 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 multi-author (not "derivative") work _must_ be either joint
> or collective, as those are mutually exclusive and exhaustive conceptual
> subcategories.

I think I misunderstood you badly.  When you said:

>>>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."

I thought you were saying *any* derivative work was either collective or
joint (and thus a multi-author work).  I was then confused about why,
for instance, a fork of a program that is not actively developed (an
example of what I meant by a work that was not coordinated with the
original author) must be a multi-author work.

If I understand correctly now, you actually just meant that merging a
patch in this situation must create (or modify) a multi-author work.

>> 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?

I think I do understand that.  I should have phrased my question better.
 What I was wondering is how an infringing derivative work could be a
multi-author work (which I assumed implied licit cooperation).

That was based on my (mis?)understanding that you were saying *all*
derivative works were either collective or joint works.

>>> 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.

Thanks for explaining.

>>> 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.

Of course, I meant enough to satisfy the major contributor.  But I am
well aware that the major contributor may actually have no legal
recourse, however unhappy this makes them.

Matthew Flaschen