Subject: FYI - Legal Definition of a Derivative Work - per Copyright

From: "todd glassey" <[email-masked]>
Date: Tue, 17 Jan 2006 09:41:23 -0800

Steve asked for some legal precedent... here is some background reading to
do

The Copyright Act, 17 U.S.C. § 101 defines a derivative work as follows:

...a work based upon one or more preexisting works such as a translation,
musical arrangement, dramatization, fictionalization, motion picture
version, sound recording, art reproduction, abridgment, condensation or any
other form in which a work may be recast, transformed, or adapted. 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.

Also pay attention to something called FIRST SALE DOCTERINE. Its a
relevent factor as well.

-------------

Which simply means that for any excerpting or republishing of "Joe's variant
of some system or protocol description" that would be  to be  reprinted, the
IETF needs the derivative use rights one would think.

See also the US Copyright description at Bitlaw - at
http://www.bitlaw.com/copyright/scope.html and pay attention to the 'five
forms of protection or rights that exist'

I believe that the IETF could claim within its standards process, that it
has the implicit right to reproduce as part of that standards process, but
when the IETF wants to let others republish its works without being any part
of the Standards Process itself, this all changes.

------------ From BITLAW:

The Copyright Act grants five rights to a copyright owner, which are
described in more detail below.

  a.. the right to reproduce the copyrighted work;
  b.. the right to prepare derivative works based upon the work;
  c.. the right to distribute copies of the work to the public;
  d.. the right to perform the copyrighted work publicly; and
  e.. the right to display the copyrighted work publicly.
------------ From BITLAW:
in re FAIR-USE:

The doctrine of fair use developed over the years as courts tried to balance
the rights of copyright owners with society's interest in allowing copying
in certain, limited circumstances. This doctrine has at its core a
fundamental belief that not all copying should be banned, particularly in
socially important endeavors such as criticism, news reporting, teaching,
and research.

Although the doctrine of fair use was originally created by the judiciary,
it is now set forth in the Copyright Act. Under the Act, four factors are to
be considered in order to determine whether a specific action is to be
considered a "fair use." These factors are as follows:

  1.. the purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes;
  2.. the nature of the copyrighted work;
  3.. the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
  4.. the effect of the use upon the potential market for or value of the
copyrighted work.

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---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Tue, 17 Jan 2006 19:54:06 +0100

> Steve asked for some legal precedent... here is some background reading to

Todd,

Steve asked for a legal precedent for your claim that a second 
implementation of a protocol constitutes a derivative work - in your words: 
"the IETF's
Standards Process MANDATES a second Interoperable Protocol be built by one
of the parties involved in the Initiative... and without the Derviative
Rights no one can legally claim that they have the right to implement that
instance of that protocol".

Nothing you have produced so far gives any indication that there's 
competent legal advice that this is the case.

Please - put up or shut up.

                     Harald

> version, sound recording, art reproduction, abridgment, condensation or
> any other form in which a work may be recast, transformed, or adapted. 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.
>