John Cowan wrote: > Well, if you were a judge, how would you rule if Alice had supplied a non-de-minimis > patch to Bob's program and Bob had accepted it and republished the work with it? > Looks like a contract to me, admittedly a parol one (but plenty of jointly authored > books seem to have no more than that), and Alice at least obviously intended her > work to merge with Bob's, as her work is incapable of standing alone. If Bob's > intent was different, what could it have been?
Wheeeee! I get to be a judge for a change! If I had such power, I would rule that Alice had licensed her work to Bob and that her work remains under her license. Based upon a review of her license and her actions, I would rule that Bob had authority to include it in his program under his collective or derivative work license. That analysis, as John notes, is based mostly on contract law, in which the intent of the parties certainly plays a major role. But let's look to the written contracts first. Everyone should honor both the Alice and Bob licenses. Quite frankly, I no longer care whether the works are de minimis or are capable of standing on their own. Under FOSS rules, software can stand or sit based on its own virtues regardless of the original programmer's intentions for it -- as long as his or her license is honored. > An example that comes to mind is the book _Intelligent Life in the Universe_, > by I.S. Shklovskii and Carl Sagan. Great book, by the way. Very influential in its time. It led to many more books on that topic even though it bore a copyright notice and wasn't free. Nowadays, of course, we read about such things for free on the Internet. /Larry -----Original Message----- From: John Cowan [mailto:[email protected]] Sent: Saturday, July 20, 2013 2:00 PM To: [email protected]; [email protected] Subject: Re: [License-discuss] Idea for time-dependent license, need comments Lawrence Rosen scripsit: > It is a nice idea in principle, but it falls flat in practice. Courts > usually require more than just a claim of joint authorship. They > demand a contract, or at least some obvious manifestation of intent, > to create a joint work. Lots of these court cases deal with rock bands > that broke up. I bet those were about the rights to thorough-composed songs, however. The case of a jazz band and the rights to recordings of live performances might be a different story. I think it would be pretty hard to claim such a performance was not a joint work -- it practically tracks the definition word for word. > I am aware of no FOSS project -- particularly any that uses a > contributor agreement or membership agreement -- that would survive a > court test for joint authorship. Well, if you were a judge, how would you rule if Alice had supplied a non-de-minimis patch to Bob's program and Bob had accepted it and republished the work with it? Looks like a contract to me, admittedly a parol one (but plenty of jointly authored books seem to have no more than that), and Alice at least obviously intended her work to merge with Bob's, as her work is incapable of standing alone. If Bob's intent was different, what could it have been? An example that comes to mind is the book _Intelligent Life in the Universe_, by I.S. Shklovskii and Carl Sagan. The first author wrote the book in Russian, and someone translated it into English, presumably as a work for hire. Then the second author heavily annotated the translation, adding sections, paragraphs, sentences, and even individual words interleaved with it. He put an inverted delta sign at the beginning of each such insertion and a delta sign at the end, showing the exact boundaries of his contributions. The result went back to the first author, who then annotated the result again with new text between delta and inverted delta, and so on until the authors were mutually satisfied, always keeping the boundaries clear. Now suppose that there had been no written contract between the authors. Would this prima facie have been a joint work, or a collective one? The original work stood alone; Sagan's first-order contributions did not, nor did any of the following contributions in later rounds. The intention was evidently to create a single new work. The authors never quarrelled, fortunately, so nobody ever had to decide. -- Using RELAX NG compact syntax to John Cowan <[email protected]> develop schemas is one of the simple http://www.ccil.org/~cowan pleasures in life.... --Jeni Tennison <[email protected]> _______________________________________________ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
