Mere Aggregation

Posted Mar 30, 2009 15:54 UTC (Mon) by butlerm (subscriber, #13312)
In reply to: It's so obvious it's not even funny by khim
Parent article: OSBC: Life at the edge of the GPL

I should clarify what I meant to say here. Of course distribution of a "mere aggregation" on the same medium creates a derivative work in the form of the aggregate or collection. What it doesn't do is make the elements of the whole derivatives of eachother.

So the copyright holders of a software module can control how, where, and when that module is distributed, and in particular what other works it can be inseparably distributed with (e.g. on the same CD). That is well established. References to such collective works can be found in federal copyright law.

However, publishing a collection of stories most certainly does not, in and of itself, make each of the stories derivative works of each other. Suppose you statically linked proprietary code into an open source program, or open source code into a proprietary program. That certainly makes the whole a derivative work, but it certainly does not make, in and of itself, the components derivatives of eachother. That was SCO's rather ridiculous theory - i.e. that e.g. Linux JFS was a derivative work of a proprietary Unix because it some point in its history its predecessors had been linked to proprietary code.

So my point is (barring some bizarre judicial invention) a derivative work (logically at least) has to be "substantially similar" in some inclusive way to the work it is "based upon". "Access and substantial similarity" sounds like a good rule of thumb to me, as long as an exception is made for purely functional interfaces at the boundaries.