Subject: Re: Jurisdictional neutrality (was Re: Copy-Back License draft for discussion)
From: Brendan Scott <lists@opensourcelaw.biz>
Date: Wed, 27 Apr 2005 13:35:05 +1000

cody koeninger wrote:
> --- Brendan Scott <lists@opensourcelaw.biz> wrote:
> 
>>This would mean drafting
>>licenses by reference to actions, rather than legal
>>constructions (eg "modification" rather than
>>"production of a derivative work").  To the extent
>>(eg in the US) a modification doesn't constitute a
>>derivative work, the actor does not need to rely on
>>the license to create the modification.  
> 
> 
> One problem with that approach is that not all
> derivative works in the software context are clearly
> modifications, especially modifications of code. 
> There are plenty of OSS licensors who would want to
> restrict derivative works to the extent allowed under
> law, even when no modification of code had taken
> place.
>   
> E.g. microstar v formgen - how is using a level
> builder to make new maps for duke nukem 3d a
> "modification" of the code?  Yet the maps were held to
> be derivative works of the story expressed in the
> software.  

Using the term "derivative" would only help in the US (and, as a matter of practice
doesn't really help a lot because no developer has anything but a rudimentary understanding
of the case law relating to what constitutes a derivative work).


In any event, the issue you've raised is not really a problem.  If it's not a modification,
but is a derivative work under US law, then (in the example) the license wouldn't extend
to cover the activities, so a separate license would be needed.  Using (in this example)
"modification" doesn't put the developer in a worse position.  If permissions are intended
to be maximal, the wording can be drafted very expansively. The benefit of this approach
is that the gap between the license and the scope of copyright will be (implicitly)
well defined in each jurisdiction, rather than being well defined in the US, but ill
defined everywhere else. 


Brendan