Subject: Re: PKG: ncurses status
To: Christopher R. Bowman <>
From: Greg A. Woods <>
List: current-users
Date: 01/09/1998 15:50:28
[ On Fri, December 19, 1997 at 12:17:00 (-0500), Christopher R. Bowman wrote: ]
> Subject: Re: PKG: ncurses status
> >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.

Perhaps you were/are in one of the disenting camps then!  ;-)

I think most everyone on Usenet even gave up on defending shareware
after about 1992 or so, with Brad Templeton being one of the last to
really try and defend the concept with his automated newsreader
filtering tool.

Of course nothing is ever proven on Usenet!  ;-)

> >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.

Redistribution of patches alone, and redistribution of a patched
product, are two entirely different things.

> 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." 

OK, fine, but patches alone are not a derivative work by that definition
or any other definition of "derivative work" in any other copyright act
I've ever read.

Patches contain only tiny "fair use" portions of the original and in no
way can they alone be used to reconstitute either the original or a
modified version of the original.  That's their elegance and one of the
reasons why we use them in the first place.

I have a dim memory that there's even case law about this in the USA,
but don't quote me on this.  I doubt there's anything on the books in
Canada yet though.

I think it should be realtively easy to argue that even the contextual
portion of context- or uni-diffs are for "educational" and/or "personal"
use only as they are completely useless without a copy of the original
in hand.

Indeed patches may qualify for their own copyright protection if they
constitute a significant work.

> 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?

It's not whether or not you "like" it, but whether you can show
significant *monetary* damages resulting from someone abusing your
copyright license.  If you give away your software you'll have one hell
of a hard time making such an argument, esp. if the guy you're arguing
against is just giving away a modified version for free too.  So far as
I can see "defamation of character" could be your only defence, at least
in Canada, and unless the modified version introduced a virus or some
other damaging feature you'd lose on that one too.

							Greg A. Woods

+1 416 443-1734			VE3TCP			robohack!woods
Planix, Inc. <>; Secrets Of The Weird <>