RE: Licensing Issue

["Dennis E. Hamilton" <de...@acm.org>]

Sent off-list by mistake.  (fat-fingered the "To" list)

-----Original Message-----
From: Dennis E. Hamilton [mailto:dennis.hamilton@acm.org] 
Sent: Saturday, June 27, 2015 09:23
To: 'Ted Dunning'
Subject: RE: Licensing Issue

The TL;DR My concern is about any statement that suggests claiming the whole work, not just the original aspect of the derivative, as under the copyright of the creator of the derivative.  Any attempt to enforce that can come to grief.  It is that one aspect of Ted’s statement about “claiming as one’s own” that I wanted to correct.  The making of the derivative of a CC0/public-domain work is not the problem, it is about any mistaken claim asserted over it.

 - Dennis

ESSAY VERSION

In the case of a CC0 or a public-domain work, the claiming of the derivative entire as under one’s own copyright will come to grief in litigation.  Not a likely case.  But it has happened in the past that usurpers have claimed such copyrights and used it as a threat against even the previous contributors.  The successful perpetrator believed that relicensing can happen this way, and the victims did not know otherwise.

It is always good to be clear, especially in a combined work, what is subject to a particular claim.  The ASF policies on handling of third-party source codes is a good example.  Even though attribution is not necessarily a requirement, it demonstrates acting in good faith and I assume that matters a great deal to the Foundation.

My favorite example of this has to do with how copyright is applied to republication of “The Wizard of Oz” book, long in the public domain.

Print publishers do not always provide such clarity.  And one has no idea what private arrangements are made as part of the Rights & Permissions work that publishers (and film producers) go through.  I do note that many combined works provide an enumeration of original sources and sometimes “used with permission” notices, despite claiming copyright on the combination (also similar to what the LICENSE on an Apache Project release is tantamount to, since the ASF does not require copyright on contributions and that is quite deliberate.)

The fundamental notion is a simple statement in the US Copyright code.  My own copyright subsists automatically and completely in the that portion of a work that (1) is copyrightable subject matter and (2) is my original contribution.  And to nothing else in that derivative.
 
This will not absolve me of infringement of the original source for a derivative absent it being public domain or absent my having a license to make a derivative (i.e., the open-source case) in accordance with the conditions on the license.  I could also have become an owner of the copyright by explicit or automatic transfer.  

I.e., Sun and Oracle became owners of the OpenOffice.org source code by virtue of a CLA that included a non-exclusive transfer of copyright.  They did not need that from their own employees because of the work-for-hire provision and probably particulars of their employment agreements.  This is what made Apache OpenOffice possible, because it only required a simple SGA from Oracle alone.

 -- Dennis, who does not even play a lawyer on cable.

PS: I recently had two technical papers published.  I did not make any copyright transfer.  The boilerplate notice on each paper has these wordings:

   “… Copyright for components of this worked owned by others 
    than [Publisher] must be honored. ...
   "Copyright is held by the owner/author(s).  Publication
    rights licensed to [Publisher]."

The combined proceedings which incorporates those papers has a notice of copyright by [Publisher] in the front matter.

----- Original Message -----
From: Ted Dunning [mailto:ted.dunning@gmail.com] 
Sent: Saturday, June 27, 2015 01:19
To: general@incubator.apache.org; Dennis Hamilton
Subject: Re: Licensing Issue


On Sat, Jun 27, 2015 at 12:53 AM, Dennis E. Hamilton <de...@acm.org> wrote:
There's a difference between making a claim, affixing a notice, etc., and it being lawful and the right to having done so being legally defensible.

I suspect this normally doesn't matter and is a trifle unless a conflict of some sort drags the usurper into court.  Finding plagiarism, even in a derivative, will be quite unfortunate.

I am confused here.

How is making a derivative work of a CC0 licensed work going to ever come to grief?

RE: Licensing Issue

[Franco Perruna <fr...@gmail.com>]

 Am 27.06.2015 19:33 schrieb "Dennis E. Hamilton" <de...@acm.org>:

> Sent off-list by mistake.  (fat-fingered the "To" list)
>
> -----Original Message-----
> From: Dennis E. Hamilton [mailto:dennis.hamilton@acm.org]
> Sent: Saturday, June 27, 2015 09:23
> To: 'Ted Dunning'
> Subject: RE: Licensing Issue
>
> The TL;DR My concern is about any statement that suggests claiming the
> whole work, not just the original aspect of the derivative, as under the
> copyright of the creator of the derivative.  Any attempt to enforce that
> can come to grief.  It is that one aspect of Ted’s statement about
> “claiming as one’s own” that I wanted to correct.  The making of the
> derivative of a CC0/public-domain work is not the problem, it is about any
> mistaken claim asserted over it.
>
>  - Dennis
>
> ESSAY VERSION
>
> In the case of a CC0 or a public-domain work, the claiming of the
> derivative entire as under one’s own copyright will come to grief in
> litigation.  Not a likely case.  But it has happened in the past that
> usurpers have claimed such copyrights and used it as a threat against even
> the previous contributors.  The successful perpetrator believed that
> relicensing can happen this way, and the victims did not know otherwise.
>
> It is always good to be clear, especially in a combined work, what is
> subject to a particular claim.  The ASF policies on handling of third-party
> source codes is a good example.  Even though attribution is not necessarily
> a requirement, it demonstrates acting in good faith and I assume that
> matters a great deal to the Foundation.
>
> My favorite example of this has to do with how copyright is applied to
> republication of “The Wizard of Oz” book, long in the public domain.
>
> Print publishers do not always provide such clarity.  And one has no idea
> what private arrangements are made as part of the Rights & Permissions work
> that publishers (and film producers) go through.  I do note that many
> combined works provide an enumeration of original sources and sometimes
> “used with permission” notices, despite claiming copyright on the
> combination (also similar to what the LICENSE on an Apache Project release
> is tantamount to, since the ASF does not require copyright on contributions
> and that is quite deliberate.)
>
> The fundamental notion is a simple statement in the US Copyright code.  My
> own copyright subsists automatically and completely in the that portion of
> a work that (1) is copyrightable subject matter and (2) is my original
> contribution.  And to nothing else in that derivative.
>
> This will not absolve me of infringement of the original source for a
> derivative absent it being public domain or absent my having a license to
> make a derivative (i.e., the open-source case) in accordance with the
> conditions on the license.  I could also have become an owner of the
> copyright by explicit or automatic transfer.
>
> I.e., Sun and Oracle became owners of the OpenOffice.org source code by
> virtue of a CLA that included a non-exclusive transfer of copyright.  They
> did not need that from their own employees because of the work-for-hire
> provision and probably particulars of their employment agreements.  This is
> what made Apache OpenOffice possible, because it only required a simple SGA
> from Oracle alone.
>
>  -- Dennis, who does not even play a lawyer on cable.
>
> PS: I recently had two technical papers published.  I did not make any
> copyright transfer.  The boilerplate notice on each paper has these
> wordings:
>
>    “… Copyright for components of this worked owned by others
>     than [Publisher] must be honored. ...
>    "Copyright is held by the owner/author(s).  Publication
>     rights licensed to [Publisher]."
>
> The combined proceedings which incorporates those papers has a notice of
> copyright by [Publisher] in the front matter.
>
> ----- Original Message -----
> From: Ted Dunning [mailto:ted.dunning@gmail.com]
> Sent: Saturday, June 27, 2015 01:19
> To: general@incubator.apache.org; Dennis Hamilton
> Subject: Re: Licensing Issue
>
>
> On Sat, Jun 27, 2015 at 12:53 AM, Dennis E. Hamilton <
> dennis.hamilton@acm.org> wrote:
> There's a difference between making a claim, affixing a notice, etc., and
> it being lawful and the right to having done so being legally defensible.
>
> I suspect this normally doesn't matter and is a trifle unless a conflict
> of some sort drags the usurper into court.  Finding plagiarism, even in a
> derivative, will be quite unfortunate.
>
> I am confused here.
>
> How is making a derivative work of a CC0 licensed work going to ever come
> to grief?
>
>
>
>