ESR: "We Don't Need the GPL Anymore"

[Michael K. Edwards]

On 7/13/05, Rick Moen <rick@linuxmafia.com> wrote:
> Quoting Michael K. Edwards (m.k.edwards@gmail.com):
> > Professor Moglen is not in the habit of citing actual historical law
> > in support of his position, which I find particularly reprehensible
> > given that he holds a chair in the history of law.
> 
> But of course, he does; it's the copyright statute.

No copyright statute in English-speaking legal history has ever
provided for a mechanism for copyright license outside contract law.

> Anyhow, I now perceive that you are one of those "everything must be a
> contract" guys, whom I don't spend time arguing with such, regardless of
> how "confident" you declare yourself.

Not everything; but yes, copyright licenses are terms in contracts,
pure and simple.  I don't feel any great desire to debate the matter
with you either, as that equine has been duly blenderized on
debian-legal.

> > The term "derivative work" is quite well defined in both 17 USC and
> > the Berne Convention, and US case law is also quite clear on the
> > matter.
> 
> "Well defined":  Ah, that's very amusing.  In the software context, the
> term in law is quite notorious for its shortage of clarity.

Got case law?  The scope of the statutory "fair use" defense and the
"ideas and methods of operation" rule to justify literal copying for
interoperability's sake has been heavily debated (that's why I
suggested the Lexmark case); but that has nothing to do with the term
"derivative work".  The legislative and judicial record on the meaning
of that phrase (defined by the 1976 Copyright Act) is crystal clear,
as you may verify for yourself at
http://caselaw.lp.findlaw.com/data2/circs/2nd/947421.html (that's
Woods v. Bourne).

> Good luck with the monograph, anyway.

Thanks.

Cheers,
- Michael