On Mon, Jul 26, 2010 at 7:54 PM, Tim Starling tstarling@wikimedia.org wrote:
The law does have a preference for the literal.
Except that it doesn't say that a derivative work must contain parts of the base work, or even be similar to it. It says that a derivative work is just "a work based upon one or more preexisting works". It goes on to say, "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'."
Would you say that a set of patches (in any form) is not "a work consisting of editorial revisions . . . or other modifications which, as a whole, represent an original work of authorship"?
I don't think that argument is particularly convincing. A review of a movie is completely dependent on the creative content of the movie, that doesn't mean the copyright holders of the movie have the right to restrict the distribution of the review.
Reviews might be derivative works, but if so, they're permitted under fair use. Indeed, reviews are one of the standard examples of fair use (although the standard application is when they actually copy parts of the work they're reviewing).
The FSF and SFLC have agendas. They make implausible arguments and justify them by the ends they achieve. I'll believe their interpretation when it's upheld in court.
The interpretation of a lawyer with an agenda is unreliable, but not so unreliable that laymen can second-guess them. At most, a layman can suspend judgment in the absence of unbiased expert opinion, not draw his own conclusions.