[Foundation-l] [Commons-l] Requirements for a strong copyleft license

[Anthony]

On Dec 4, 2007 3:34 AM, Benj. Mako Hill <mako at 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.