On 9/8/2015 5:14 PM, Kevin Fleming wrote: > The genesis of my statement (which I purposely left ambiguous because > IANAL and IANYL and many here are) is that a set of source files that > do not have any copyright/license statements included and a set that > do have such statements included could easily be considered *different > works*, because they contain different content. The content difference > may be immaterial to the usage of the code (it certainly doesn't > affect compilation or execution of the code), but it's still > different. It might even be reasonable to claim that the version with > the statements is a derivative work of the one without the statements, > even if produced by the copyright holder(s). Interesting theory. I would say not though, because the addition of the copyright/license statements are not original enough to make the new work with the addition or omission a derivative work, and also for the reasons you mention, that they don't actually affect the work. It would be like saying that a second edition, with new title page listing the new year of publication and different publisher, would be a derivative work of, or a different work from, the first edition. Without doing any legal research (which is guaranteed to get me into trouble), my guess is that courts have decided that insignificant changes don't make it a new work.[1] > Given that, if someone has a copy of the version without such > statements, I'd personally recommend (and certainly do in my day job) > that finding another copy elsewhere that has such statements is > immaterial. This usually doesn't matter when the discussion occurs > before any potentially infringing activity has occurred, since we can > just tell the user to go download the copy with the license > statements, but after the fact I'd be quite surprised that > demonstrating the existence of the other copy would be sufficient. This is one of my favorite subjects, whether to have a license you need to know that it existed at the time you copied or not. I don't think so, the copyright owner put the work out there with a promise not to sue, so I don't know why I would need to be aware of the promise to claim the benefit of it.
Pam Pamela S. Chestek Chestek Legal PO Box 2492 Raleigh, NC 27602 919-800-8033 [email protected] www.chesteklegal.com [1] Ok, I lied. It rang a bell and I looked it up. Not quite on all fours but in the recent Creative Commons case where the photographer argued that cropping his photo created a derivative work, the court said "Any discernible cropping appears to be 'so minor and insubstantial that as a matter of law it falls within that degree of latitude afforded licensees to alter a copyrighted work to suit their style or the medium in which the work is presented.'" /Drauglis v. Kappa Map Group, LLC,/ 2015 U.S. Dist. LEXIS 108992, *21 (D.D.C. Aug. 18, 2015).
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