Subject: Re: Procedure for using an approved license
From: John Cowan <jcowan@reutershealth.com>
Date: Mon, 21 Oct 2002 11:09:09 -0400 (EDT)

Rod Dixon, J.D., LL.M. scripsit:

> There is also the questionable premise that a software license may
> lawfully extinguish the floor and ceiling of derivative works...i.e. under
> copyright law some "modifications" need no permission from the copyright
> holder because they are fair uses, other "modifications" need no permission
> from the copyright holder because they are transformative and somewhere
> between those two extremes you'll find derivative works.  

I suppose you mean "infringing (absent a license) derivative works".  This
terminology is very clumsy, but at least it gets fair use etc. into the
right part of the picture: defenses against infringement.

But in any event, the statutory definition of "derivative work" employs
the term "modifications" as primitive:

	A "derivative work" is a work based upon on or more preexisting
	works, such as a translation, [other examples omitted] or
	any other form in which a work may be recast, transformed, or
	adapted.  A work consisting of editorial revisions, annotations,
	elaborations, or other *modifications*, which as a whole,
	represent an original work of authorship, is a "derivative work".
	[Emphasis added.]

> a software license uses the term "modification" to tread on the shoulders of
> transformative works or to control what is or may be viewed as fair uses,

In these cases, the question is not whether the unauthorized-by-the-license
derivative work is really a derivative work; it is whether it infringes or not.
If it is fair use, including transformative use, it does not infringe.

IANAL, TINLA, obviously.

-- 
All Gaul is divided into three parts: the part          John Cowan
that cooks with lard and goose fat, the part            www.ccil.org/~cowan
that cooks with olive oil, and the part that            www.reutershealth.com
cooks with butter. -- David Chessler                    jcowan@reutershealth.com
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