Subject: Re: how much right do I have on my project, if there are patches by others?
From: Rick Moen <rick@linuxmafia.com>
Date: Sun, 8 Jul 2007 21:09:18 -0700

Quoting Matthew Flaschen (matthew.flaschen@gatech.edu):

> 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.

It is, substantively, a set of instructions saying "delete these lines".
Therefore, I really doubt a judge is going to call that an unlicensed copy.
As has been said in this space before, judges are not Turing machines,
and with reasonable luck will leave their brains turned on while
hearing such a case.

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

I'm saying that (in the general case) a patch by itself is an
independent creative work, and is likely to be treated in law the same
way as commentary on someone's work is.  By contrast, a patch being
_applied_ to the work is very likely to create a derivative work of the
latter.

That derivative work, being a multi-author work, must then necessarily
be _either_ a joint work or a collective work, by definition.  (This is
in reply to your suggestion that such a work with a third-party patch
applied to it _might be_ something else other than a joint or collective
work.  No.)

> 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).

Er, I'm having a difficult time parsing that.  Are you starting out by
positing something that is _both_ licit and infringing at the same time?
Neat trick, that.  Something one encounters on a noonday midnight,
perhaps?  ;->  Finding a way for it to then be multi-author, after you've
already found a way for it to be both licit and infringing, would
probably be simple by comparison.