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This seems to be a recurring problem, both on this site and elsewhere, and including my own questions. Lots of specific-detail-type problems that may seem like that's all they are on their own, but their proliferation and aggregate theme suggest to me a fundamental misunderstanding.


For example, my question of How far does a Creative Commons Non-Commercial restriction reach? assumes monolithic ownership of a derivative work, with no distinction of ownership between parts, even if some of those parts are unchanged from the original. This leads to a general theme of, "How much do I have to change it to make it mine, and thus disregard a license that I received it under?"

According to that monolithic understanding, a restrictive license for the original ends up controlling something that I own. That is, someone else controls something that I own, and that smacks of a moral problem. So my underlying, technically-unstated concern in the above-linked question is whether the law really says something immoral.

(morality can be a pretty powerful driver, even if the legal and penal systems aren't supposed to care about it, not to mention the more religious persuasions having a field day with that conflict, real or not)


But a different understanding - one that allows granular ownership instead - doesn't have that problem. In that case, I only own the parts of my thingy that I actually invented. The parts that I left unchanged, no matter how small, still belong to the original owner(s) and not to me, and so the original license still applies to those parts.

According to this granular understanding, someone else is no longer controlling something that I own, but something that they own, because I only own the parts that I actually made and not the whole thing.

That makes all the difference in the world! It completely changes the mindset from "How can I avoid these immoral people, and perhaps 'do my part' in some cases to rid our society of them?" to "How can I not hurt someone who is practically just like me?"

In other words, it makes me want to follow the law, when I understand the reasoning behind it. The law itself, alone, doesn't do that.


Am I on the right track with the above description? Is that the right way to think about intellectual property and everything that the law says about it?

Are there still problems with that understanding that I missed?

Don't be afraid to go into the weeds on this one. The more detail, the better, so long as it's still easy to follow. I'm essentially trying to use an educational site to do what wasn't done in an outdated school curriculum.

(it can't avoid being outdated if the administrators don't understand the near-instant transition from relative impotence to empowerment that the internet has caused, and so a whole new class of technically-old legalese has suddenly become important to the common people...and doesn't seem to match the culture that grew independently and organically from that sudden empowerment)

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  • 1
    This question seems to be about copyright. It would then be best to use the word "copyright" in stead of "intellectual property". Aug 27 at 8:29
  • "That is, someone else controls something that I own, and that smacks of a moral problem." Is the real problem here "I think I ought to own something, but I don't." That may indeed be a moral problem (e.g. if the "thing" is a child whose parents have separated) but it's not usually an IP or copyright problem!
    – alephzero
    Aug 27 at 12:16
  • @StigHemmer Mostly yes, but there's some fuzzy overlap between copyrights, patents, trademarks, etc. The drawings of a physical widget vs. the operational concept, for example, fall under different categories as I understand, but that distinction is completely lost at the level that I'd like to keep this at.
    – AaronD
    Aug 27 at 16:16
  • 1
    @AaronD: The derivative works right doesn't really exist for other forms of IP, although activities related to a derivative work could nevertheless give rise to liability under e.g. patent law.
    – Kevin
    Aug 27 at 17:18
  • 3
    You can start by learning that there isn't IP, there is copyright, patent, and trademark law, each with its own set of rules, and not to confuse them nor conflate them with the rules governing real, tangible property. Aug 27 at 19:39
11

What you are missing is that the original copyright holder can give permission to make derivative works with strings attached. There is no automatic right to derive something from a copyrighted work.

Those strings could include constraints on what you create in the process of making the derivative work. Yes it is a string limiting what you can do with something you own, but you would have been warned in the license and had the choice to start from scratch.

People do create work-alike software with no copyright strings using two teams and a "clean room" design process. It is a lot harder than modifying something another person has developed. Also, law and someone's understanding of morals need not be aligned at all.

And, in patent law, just creating something all by yourself from scratch does not give you ownership. If someone else did it first and got a patent you can't make the item you might think you own. IP law is complex and looking for "fundamentals" may not get you anywhere.

6

While it is quite true, as the answer by Ron Trunk says, that the creator of a derivative work only owns the copyright on parts added to or changed from the source work, it is also true that the owner of the copyright on the source work has a degree of control over even the new parts of the derivative work.

Specifically these rights are, for US law stated in 17 USC 106 which says, in relevant part:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

...

(2) to prepare derivative works based upon the copyrighted work;

This means that o one may prepare such a derivative work at all without permission; doing so is copyright infringement and subjects the creator of the derivative work to an infringement suit on the entire derivative work.

Also relevant in US law is 17 USC 103 which reads:

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

Thus the creator of a derivative work who fails to secure needed permission will lose any protection on at least the parts of the wok for which permission was needed, and possibly loses any copyright protection for the work at all.

Some derivative works involve making additions and changes to the base work, while leaving other parts unchanged. Others involve basing a derivative work on the base or source work in other ways.

For example, one might translate a work into another language. This would be a derivative work, even though none of the words from the source work would be used. In this case permission from the owner of the copyright on the original would be needed. Anyone who then copies the translation (or any significant part of it) without permission could be sued by the owner of the copyright on the translation, or by the owner of the copyright on the source work, or both.

For a second example, one might create a new work using characters and settings from another work. Suppose, say, one wanted to create a new novel set in the Universe of Star Wars, centering on some of the minor characters from the films, plus new characters created by the new author. This would again require permission from the owner of the copyright on the original (perhaps George Lucas or Lucasfilms, or more recently Disney). If someone created unauthorized copies, or creates a further derivative work using these new characters, the author of the authorized derivative work could sue, as could the owner of the copyright on the original films.

For a third example, one could update and expand a textbook, adding new chapters to cover new developments, and updating some examples and statements where current knowledge has changed, but leaving much of the book unaltered. This would again require permission from the copyright holder on the original edition. In this sort of case, a person who copied one of these added or altered sections could be sued by the author of the new edition, while a person who copies only from the original edition could be sued by only the owner of the copyright on that edition. This is the case that the quote from the copyright office is discussing.

Note that in all these cases, the derivative work is, in effect, under two copyrights: the copyright on the source work, and the copyright on the derivative work. The second of these does not extend to content copied unchanged from the source work, but does extend to any new or revised content. In the case of a translation, it would extend to the ensure derivative work, because none of it is copied unchanged.

The Wikipedia article on "Derivative work" describes the case of Durham Industries, Inc. v. Tomy Corp. 630 F.2d 905 (2d Cir, 1980) In that case two different manufacturers were licensed by Disney to create models of some of its cartoon characters such as Mickey Mouse, Donald Duck and Pluto. As the article says: "Durham conceded that in making these toys it used Tomy's Disney figures as models." But the court found that Tomy had made no original artistic contributions to the figures, but had faithfully followed the Disney originals, and thus had no valid copyright on the models, and had no claim against Durham .

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  • 1
    I believe the copyright in Star Wars is now owned by Disney
    – Dale M
    Aug 26 at 21:42
5

Fortunately for your moral sense, copyright law (at least in the U.S) seems to follow your second "understanding." Original works are owned (and copyrightable) by the creator. If you change or add something to an original work, you create a derivative work, and the new parts are copyrightable by you; the original parts still belong to the original creator.

The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party.

Circular 14: Copyright in Derivative Works and Compilations, U.S Copyright Office

Note that the owner of the original work has an exclusive right to create derivative works. So you need permission from them to use (parts of) the original.

Of course, everything hinges on whether your changes/additions are substantial enough to be considered derivative, and not merely a copy. The Circular quoted above gives some examples of derivative works, including

A new version of an existing computer program

3

How much do I have to change it to make it mine, and thus disregard a license that I received it under?

100%. You can't claim ownership over someone else's work. The only ways to make it "yours" are for it to be your sole creation or for the owner to explicitly transfer ownership to you. If you could disregard a license by making enough modifications, licenses would have no force at all. Plus, whether something was modified "enough" to justify dropping the license is the type of subjective thing that courts try not to have to decide.

According to that monolithic understanding, a restrictive license for the original ends up controlling something that I own. That is, someone else controls something that I own, and that smacks of a moral problem.

That's not an accurate characterization. In your original scenario there are three different things to keep track of: the content created by the original author, the content you created, and the overall project (a combination of the two). The original author owns and controls everything he created, and you own and control everything you created. The license only impacts the overall project, the aggregate of your work and theirs.

In that case, I only own the parts of my thingy that I actually invented. The parts that I left unchanged, no matter how small, still belong to the original owner(s) and not to me, and so the original license still applies to those parts.

That is correct, but it's not always that easy in practical terms. Sometimes your contributions are hard to separate from the original - particularly when it comes to hardware. There's also the problem of the parts that you modified but didn't create.

Instead of a hardware project, consider a book. Someone else wrote a book and licensed it under your CC BY-NC-SA license. You came along and modified the book, removing an out-of-date chapter, adding several appendices, and creating an index with cross-references. Those appendices and index are your original creations, so you have complete ownership and control. You can re-use that content in another book, package them up and sell them separately, or whatever you want. Your modified book, however, is a combination of the original author's work and yours. You don't own the original author's portion of the work, so your rights to using his work only extend to what's included in the license. Only the owner can re-license their work.

There is no moral problem here. Each contributor retains complete control over their own work (unless they explicitly disclaim it), no one else can do something with your work without your permission. When multiple people contribute to an aggregate work, they need a legal document giving each other permission to use a copy of their contributions and outlining the conditions under which they can be used. That legal document is the license.

Don't think of the license as controlling your work. The license controls the aggregate work (yours plus the other authors'). The only way to change that license is to get the express permission of every contributor. When you take someone else's work and modify it (like when you altered the shape of the circuit board), that's called a derivative work which is covered by the "share alike" portion of the license you agreed to.

-1

Great answers and comments! Thank you! I'm still working on putting it all together, along with some more of my own observations of practicality, but I think I'm getting enough of a gel to put it out for comment.

(My way of thinking requires a single overarching concept to base everything on, and then the rest becomes relatively easy. Without that, it's hopelessly confusing, and genuinely scary to think that I can be destroyed at any time without warning, for not redirecting my entire paycheck to a lawyer to play "Mother may I", and even that's not guaranteed.)


Anyway:

What if "ownership" doesn't actually exist?

No one owns anything non-physical. Concepts, ideas, characters, stories, music, and other non-physical things simply exist, on their own, regardless of who invented them or controls them. There is no ownership at all of those things, in the sense of something physical being owned. (and in some economic systems, even physical things are treated this way as well)

Not having ownership at all, removes the foundation to think about one person owning something, and someone else controlling it against the owner's wishes.

Only the right to control something can be owned and traded as property. Somewhat similar to mineral rights being traded separately from land, which also had me confused for a long time. (Why is Grandma denied royalties from the oil under her house? Does she not own that part of the planet? (turns out that the mineral rights were sold a long time ago by someone else when they were thought to be worthless...))

The idea of separate items is still incredibly granular, so what you might think of as "one thing" is in fact many different things; a bit like a beach not being "one thing", but many different grains of sand. And each of those granular things may or may not have different people controlling them with different permissions and requirements.


Over all of this, is a piecemeal pile of band-aids, each of which is only a partial solution, even at the time, for what a different person thought was a problem. Trying to "fix the system" without really understanding the thought behind what's already there, or trying to change the system in their favor without understanding (or perhaps not caring about) the further consequences of that change.

And when a collection of band-aids can be put together to make it impossible to avoid breaking the law in some form or another no matter what you do (pick your poison; you can't avoid all of it), the lawyers profit greatly! So there's little motivation to clean up a legal climate that makes "technical debt" (to use an engineering term - see spoiler*) look like an elegant original design by comparison.

*Side-note to try and explain "technical debt" to non-engineers: I used to work as a software engineer for an equipment supplier, where the management insisted that each project be based on the previous one, "with only small changes."
After just a small handful of those, the original well-structured control program had become such a mess of things tacked on practically at random, that everything depended on everything else working exactly that way, and it was impossible to change even the smallest thing without breaking something else. The fix for that would then break a different thing, etc.
Thus, the "small changes" practically turned into a complete rewrite every time, by the time all of the dependent problems were found and fixed, but without the elegance and self-explanation that an actual rewrite would have had. This "technical debt" effectively charges interest in terms of engineering time to work in that mess, so the "debt" terminology is quite accurate.

This, then, leads to the conclusion that law is no longer a prescription for morality, as is often taught to kids and portrayed throughout life, but a set of negotiating tools that can be used or set aside as desired. If you have a disagreement, you can use the law to help resolve it, forcibly if need be. But if everyone involved agrees, then the law becomes irrelevant. (under that understanding, Law Enforcement works by sending someone to officially disagree...) The larger players are effectively anarchists between each other because of the MAD principle (Mutually Assured Destruction), as are the smaller players between each other, but one from each group in a disagreement is a spectacular exercise in hypocritical bullying.

(Large tech companies steal each others' patents all the time without permission and use them in their products, according to someone who used to work in one, but don't you dare do that as a startup!)

So since there practically cannot be an innocent party, it really does come down to the attorneys' skill and familiarity in negotiating this nonsensical pile of band-aids in legalese. More like a sports game with astronomical consequences, than a real case of law as we were taught to think of it as kids.

(The rules of this game govern what the attorneys can and can't do and use, just like any other sport, and it's all skill from there. There are penalties for breaking those rules, and the occasional strategy to take the penalty on purpose if it provides some other gain. (and sometimes the rules change to close that loophole, just like they do in sports) The rest of the legal code is just a tool now, to be used in that game, sometimes creatively. Nothing more, because it's practically (and sometimes logically) impossible to follow the entire law anyway.)

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  • This is not an answer to the posted question. It hurts the structure of SE for things that are not attempts to answer the posted question to be entered as "answers". If it wasn't so long it could be a comment. If there was a question here you should post as as a new question. Aug 31 at 22:46
  • It is indeed a proposed General Foundation for Understanding IP Law, and therefore a direct answer. If there's something factually, technically, or otherwise wrong with the answer, please comment accordingly, but it is an answer.
    – AaronD
    Aug 31 at 22:53

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