Questions about GPL license

[Lydiot]

@Lydiot

To be fair, I think those cases ought to be viewed within a separate framework, because we're not just talking about general copyright law, but the ShareAlike component of the CC license. (I know, the title is GPL, that's my fault).

Yes, but the question was about whether or not new work is derivative or adaptation of old work. I wasn't the one who brought up photos in film and I wasn't the one responding to it, but if Thorsten thinks it's a clear-cut case where including something that is under a share license means that makes the movie a share license he's just wrong about that. His response is just not reflected in reality as far as I can tell.

You're right about the de minimis doctrine with respect to copyright law:

Courts will occasionally not uphold a copyright on modified public domain material if the changes are deemed to be de minimis.[16] Similarly, courts have dismissed copyright infringement cases on the grounds that the alleged infringer's use of the copyrighted work (such as sampling) was so insignificant as to be de minimis.

From Wikipedia.

Who knows, maybe it's possible to violate a license and still not be found culpable of infringement. Get that? In other words, as a matter of semantics, I make a bunch of conditions when I license my work. You violate that license, so that's license violation right there (or what could be termed unfair gain or even theft), however the legal decision could be that I'm not culpable for copyright infringement, because a bunch of judges made a number of judicial balancing acts and ruled in the defendant's favor.

Maybe that's what Thorstein means about it being black and white, meaning that the violation of the conditions of a license may be the black and white letter of the license.

Well the potential damages is one thing and if infringement occurred is another. I don't think infringement is as black and white as Thorsten says it is because we can see in those court cases that there's a discussion to be had about whether or not there was an infringement. How often was something shown? How clear was it? How relevant was it to the new work? Saying that "yes, this was a copy of this old work" doesn't actually mean it was infringement because that depends on all those other factors.

And in the case of the appellant's ten photographs used in the movie 7even, I wouldn't dismiss entirely that the producers made some unfair gain. Maybe the word "theft" is strong, but to many people it is, and I wouldn't just dismiss that notion. It does seem rather unfair if this appellant felt his property was violated and the film corporation decided not to compensate him even a little.

Well the law isn't always "fair". But the thing to consider is what a reasonable situation is overall. Imagine if every time you end up with a prior work within the frame in one of your shots in a movie or TV show etc, and that every time that happened it would void your license and you would no longer be able to sell your work for profit. If that was the case I could sabotage a production by sneaking an item into the frame and then nobody could sell that movie or show any longer. Or I'd get paid. It's simply not reasonable.

Instead it seems the law is written and interpreted in a way that is reasonable so that people can still create new art - within reason - without fearing that they get into legal trouble. And it really is as simple as paying attention to what's in frame and asking for permission if something is obviously possibly a problem.

When it comes to licenses here it seems to me that Thorsten makes some good points, I just don't know if they're built on logical arguments after what he said about movies. But it does seem reasonable that if you take something from someone else and your new work is dependent on that old work you really need to pay close attention to licensing and adjust accordingly.

[tdammers]

The thing is that there are two "stages" to implementing and enforcing copyright here.

The first stage is determining whether copyright applies at all. This involves establishing whether the work in question is in fact a derived work, and "de minimis" is one of the exceptions to the general rule - if someone makes use of work A in creating work B, then normally, B becomes a derived work of A, and the copyright holder of A is entitled to rights to work B. But if the contribution of A is minimal to the overall scope and effort of creating B, then "de minimis" can apply, and make B "not a derived work" of A. For example, if I make a documentary film, and in one scene, a pop song is playing on the radio in the background somewhere for two seconds, then I have technically used that song in creating the documentary; but the contribution of the pop song to the documentary as a whole is so small that most judges would rule that the documentary is not a derived work of the pop song.

The second stage is determining whether there are any actual damages worth compensating. This stage only becomes relevant *after* it has been established that copyright applies - if there is no copyright to be applied, then there is no case to be made in the first place. But if it does, then the claiming party still has to make their case that the copyright violation has caused them substantial damage. For example, if you copy code that I was planning to release under a proprietary license and charge people money for it, then I can argue lost sales, and demand that you compensate me for those. But if you copy code that I was about to release under an MIT license, and distribute that without my agreement, then I'll have a much harder time arguing that this caused me substantial damage somehow - I would have released it for free anyway, my name is still on it, it's not exposing anything confidential, and I wasn't going to make any money off of it at any point. You violated the license, and that's still illegal, but it may end up completely inconsequential.