On Dec 4, 2007 3:34 AM, Benj. Mako Hill mako@atdot.cc wrote:
<quote who="Fred Benenson" date="Sun, Dec 02, 2007 at 09:24:15PM -0500"> > The reason this has good legal force is because "derivative work" has a > strict and specific definition in law that was formed completely > independently of the GPL and CC.
It's not *that* strict and specific. There's a whole bunch of fuzzy space and copying images as I've pointed out to you before and as you allude to in your email.
It's not very strict and specific at all. The exclusive right to prepare a derivative work rarely comes into play, because the right to copy and/or to distribute the original work almost always is invoked in addition. CC-BY-SA (and the GFDL, for that matter), arguably (*) separates the rights and treats them independently. The case law on what constitutes a derivative work is actually contradictory. Galoob v. Nintendo (Game Genie does not create a derivative work), Lee v. A.R.T. Company (7th circuit, mounting artwork on a ceramic tile does not create a derivative work), Mirage Editions v. Albuquerque A.R.T. (9th circuit, mounting artwork on a ceramic tile does create a derivative work), and Muoz v. Albuquerque A.R.T. (9th circuit, mounting artwork on a ceramic tile does create a derivative work) are three that come to mind. The 7th and 9th circuit can't even agree on what is essentially an identical case.
(*) The GFDL, at least, has an automatic termination clause which could be argued to revoke permission to copy and/or distribute the original work if you mix with a proprietary work in a way not permitted by the license.