the right to make a difference

Xen list at
Mon Jun 6 16:55:17 UTC 2016

Sam Bull schreef op 06-06-2016 17:02:

Sam Bull schreef op 06-06-2016 17:02:

> As the patches substantially change the original code base, it is very
> likely to be considered a derivative, without needing to take into
> account all these other more complex factors.

Of course, thank you, thanks clear.

In the case of Micro Star v. Formgen Inc., apparently the court also 
made the case of map files linking to graphics, and that in itself being 
infringing, but that aside.

Now patches can also be distributed as separate modules. They may change 
the code base, but only on a local person's computer.

Like I said, if the court is going to have a binary yes/no decision (we 
call that black & white) about the issue of derivative, it may be 
coerced in its judgement about what it considers the desirable outcome 
of the case; desirable if it is infringing? Then it is going to be a 
derivative. Desirable if it is not infringing, and thus allowed? Then it 
is not going to be a derivative.

And it will take into account any factors that the defense might bring 
to the table.

These factors might include previous rejections of the core team of 
these patches. These factors may include the apparent choice to disown 
any access to the patches by this core team.

If the license is about access; but no one wanted it, what then?

What reason now has anyone to persecute this person?

Can we talk human as well? Yes I was talking copyright law, but law is 
an instrument. You must talk human as well.

If I have the right to kill you because you breach my garden door, but 
actually you are the maintainer of my garden, why would I do so?

Persecution would probably result in a loss for everyone, except for the 
greedy people that really have no stake in the battle.

Linus has had access to these patches for the longest time, and probably 
still has(?).

The patches do not change the code base any more than that circuit board 
of Artic changed Midway's hardware console, in that sense.

Artic did not distribute a modified version of the arcade, it only 
distributed a modified version of its roms.

The patches do not change the program; the patch program does. The 
patches are codified instructions, but they are a program in itself.

They are a program to be fed to the patch program. Of course they 
contain code, but theoretically you could even remove that.

Then, the essence is that it is a program with instructions for changing 
the old code base.

It would be like distributing the instructions to alter a book; would it 
be a derivative?

If I only give you page and word numbers, would it be a derivative? You 
could apply it to some other book as well. You would just get nonsense, 
that is all.

So it becomes more likely to be judged as an "additional chapter" as 
programs are classed as literary works. But still.

If the situation arises that someone *could* prosecute but it would be 
to the detriment of all parties, then something is wrong with the law.

Originally I based myself on a source that said that additional chapters 
published individually would not be counted as derivative works, my 
apologies if this has been wrong:

"This is why qmail developers would distribute their work as /patches/ 
to the original source code, which is the equivalent of distributing an 
additional chapter to a book without the original content: the end-user 
is responsible for assembling the pieces in a way that makes sense." 
(Ben Adida).

If there is only one classification for derivative work that includes 
all categories; then you get a very black and white way of reaching 
verdicts; and the only exception then is fair use; but fair use 
typically excludes commercial application.

This would then explain why judges seem to be so arbitrary in saying yes 
or no; because then in that case, by "legal law" the verdict would 
depend on it.

It seems clear that the sequel to a book, or an additional chapter for 
it, would be seen as material "based on" the original. Commonly, in 
human language, a patch is also "based on" the original, though it 
incorporates no actual material; apart from being a functional element 
(which does not cover infringement). The point in the above quote is 
that technically, only the patch is ever distributed; so only the patch 
can or should be considered for being derivative.

You claim that GRsecurity admits that the patch is derivative; of 
course. Under different conditions, he may not. Who knows.

If I was a judge, I would at this point start thinking about, and trying 
to discuss, market impact, fair use, and legality of the license, in 
advance of becoming entirely clear on the derivative work point.

Apparently this case has never been tested in court?

The question becomes whether you are allowed to distribute instructions 
that modify the product, if and when the instructions also contain new 

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