On Thu, 18 Dec 1997, Greg A. Woods wrote:

>[ On Thu, December 18, 1997 at 10:41:47 (-0500), Christopher R. Bowman wrote: ]
>> Subject: Re: PKG: ncurses status
>>
>> I haven't seen the ncurses copyright, but typically the liscense that
>> goes with these packages seeks to make a contract with the user, it
>> gives you the right to use the source according to the terms that
>> the liscense sets forth, and in return you agreed that your derivative
>> work will be covered either by the same liscense or other terms set
>> forth in the liscense.  Are you trying to argue that patches do not
>> constitute a derivative work?  Thought I am not a lawyer I know of
>> no legal precedent that establishes this.  Further I think that a
>> resonable legal argument could be made that patches are a derivative work.
>
>I haven't looked at the ncurses copyright either, but assuming that the
>original package continues to be freely available in source form then I
>just can't see what the big stink can be about.
>
>Patches, alone, do not (IMO, but I'm not alone) constitute a derivative
>work unless they are very very extensive and would drastically alter the
>form of the original work.  I thought we settled this silly debate on
>Usenet over a decade ago.

You will, please, forgive me if I say that perhaps you did, but I have
only been on Usenet since around 1989 or so, and so a solution arived
at a decade ago would have been before my time.

>Patches are, at worst, fair use of the original work, and at best totally
>unrelated to the copyright status of the original work.

I am not really sure I agree with this.  I belive that you could claim
that they fall under the educational fair use if you could show that
that is how they are being used, but for the most part they ain't.
Personal fair use, ok but then you couldn't redistribute them.

Fair use as define below from Section 101 of the Copyright Act

A "derivative work" is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, 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." 

The terms under which an author decides to liscense a copyrighted work
may be as stringent or as lenient as he decides to make them, and
assuming he has not explicitly surrendered his copyright rights he
maintains them.  If I as author say this is copyrighted and you may
freely give this work to others including souce code, but only in
its entirety, with out modification.  Then that is an enforceable
listcense and the fact that I am not charging you for the code doesn't
make my liscense any less enforceable than Microsofts.

>Arguing this point for freeware (i.e. software that the author(s)
>make(s) freely available and distributes without charge) is so ludicrous
>and so stupid as to be insanely funny.

If the liscense forbids it then it forbids it, and we would be better
off trying to convince the author to change it.

I feel it is somewhat disingenuous for us to say that since it is freeware
then we should just disregard the copyright, after all NetBSD is freeware
how would we like it if our copyright were just ignored?

>In theory even minor patches against a commercial package (at least one
>*NOT* covered by trade secret protection, but only copyright license)
>would still be OK.

Under what theory? and while I agree that patches for personal use would
be ok, I am not so sure about redistribution of such patches.

>-- 
>							Greg A. Woods
>
>+1 416 443-1734			VE3TCP			robohack!woods
>Planix, Inc. <woods@planix.com>; Secrets Of The Weird <woods@weird.com>
>
>

---------
Christopher R. Bowman
crb@ChrisBowman.com
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