Subject: Re: BSD-like licenses and the OSI approval process
From: John Cowan <cowan@ccil.org>
Date: Fri, 12 Oct 2007 17:53:19 -0400

Lawrence Rosen scripsit:

> For one thing, I could trivially avoid the whole issue in the world
> of permissive software licenses by making a non-trivial expressive
> change (such as affixing my beautiful logo to your BSD-licensed work)
> to create a derivative work.

Granted.  I'll exclude that case in my discussion following.

> Furthermore, the fact that I enable someone to drill down to and copy a
> specific page in my collective work doesn't make the collection itself
> any the less a copyrightable collective work.

I'm not so sure that it's copyrightable as a collective work: it doesn't look
original enough for a U.S. copyright.  You mechanically chose what went in
(based on Web-wide search engines) and you mechanically ordered them (in
some fashion or other).  Looks like a white pages to me, albeit with full
text.

> That person's copy of the individual page was copied from my work that
> he received under the terms of my collective work license, AFL 3.0
> (to which he assented!).

Is it really true that the maker of a collective work (a collection of
essays, say) has an action for breach if I copy any one essay without
permission?  The author of the essay does for sure.

> Finally, in my case I'm not intending to assert any copyright interest
> specifically in the page he copied by drilling down, because it remains
> under the BSD license--as well as, under the authority of the BSD
> license--under AFL 3.0.

Ah, but that's the bad bit.  The AFL3 begins by saying that it applies
to any original work of authorship whose owner has placed certain words
adjacent to the copyright notice.  But the owner (that is, the original
author) has done nothing of the sort.  You have, but why am I bound by
what you say?

> My copyright interest, as you suggest, does not extend to your
> BSD-licensed work. But I read your BSD license as giving me permission
> to distribute your work under any license I choose, including AFL 3.0,
> as long as I copy the text of your BSD license in the source code.

What's the source of your ability to do that?

> Where's the beef in your entirely hypothetical question? Legal
> questions, no matter how "essential" to ponder, don't exist in a
> vacuum. Would you take such a question to court? What's the legal
> dispute? Have I done something to your BSD-licensed work, or claimed any
> rights to it that I don't deserve, that would justify your complaining
> to a copyright court about my AFL 3.0 collective work and my OSL
> 3.0 website?

Perhaps not.  Luckily for me, IANAL (and TINLA, of course).  That means
I get to ponder these questions.

-- 
John Cowan    cowan@ccil.org    http://ccil.org/~cowan
This great college [Trinity], of this ancient university [Cambridge],
has seen some strange sights. It has seen Wordsworth drunk and Porson
sober. And here am I, a better poet than Porson, and a better scholar
than Wordsworth, somewhere betwixt and between.  --A.E. Housman