Is each version of a software considered a &quot;derivative work&quot;? Originally asked in Software Engineering but a user raised it is more a legal question than an engineering one. Let's suppose there is a software at version a1 in code repository A on an online code hosting website. Let's suppose the original author updated it and made a version a2, then a3. Another person comes along, forked a1 to another code repository B, then modified it resulting their own b2, then modified b2 again and resulted in b3. All versions are available online - a1, a2, b2 are available in the code commit history, and a3, b3 are available on the home page. a1 -- a2 -- a3 `-- b2 -- b3 Question: how many derivative works of the software exist in this scenario? My initial instinct is one, because there is the original code repository A, and a forked-and-modified repository B which is the derivative work. But I realized the answer might be four (that is, a2, a3, b2, b3 all count as derivative works of the original code -- but not sure), given that in the copyright law (using US copyright law as an example): A “derivative work” is 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”. The definition given in the Apache 2.0 license is more direct: &quot;Derivative Works&quot; shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. I think a key point a software is different from a book/painting/movie is that software is very much a &quot;live&quot; thing - that is, software is constantly being updated after being &quot;published&quot;. Especially, each small iteration (commit) of an open source project is accessible publicly, instead of periodically being made public after accumulating a few months' works behind the scene.
Four Yes, each version is a derivative work, as mentioned in https://www.copyright.gov/circs/circ14.pdf The following are examples of the many different types of derivative works: ... A new version of an existing computer program
Impressum Requirement Wow, based on your citations, you've done a lot of research on this topic. I'm just going to add one more reference, which is from the same site as your first German citation and has incredibly detailed and judicially referenced information on almost everything related to the Impressum. All my non-GitHub links are to sections of that page. Based on your research, I'm going to take it for granted that you understand that according to the Telemediengesetz (TMG), an Impressum is required on a web page if it is &quot;business-like&quot; (geschäftsmäßig), or if it helps, I prefer to word it as &quot;potentially commercial.&quot; I would have to argue that open source projects have to be seen as inherently &quot;business-like&quot; for the purposes of the TMG for two reasons: Some other legal person may have similar software as part of their business and might have the need to serve legal notifications to the owner of a GitHub project (TMG § 8 gives competitors the right to sue). Think potential copyright violations here. It is possible to build a more traditional commercial business around open source, for example what Canonical is doing around Ubuntu. Additionally, the common legal advice is to even include an Impressum on a personal blog, though I'm not aware of any court case having occurred at that level yet. In my opinion, a GitHub account can be seen as more &quot;business-like&quot; than a personal blog, and would follow that advice out of caution. I'll note that the XING situation you bring up is complicated. It centers over whether the content of XING pages is &quot;business-like&quot; according to the TMG. It may well turn out that some pages will need an Impressum and others won't. As for placing it in the project's readme.md, that might work but I have two concerns: The courts have essentially stated that the text of the link must imply that the required information under TMG § 5 is located there. For example, the words Impressum and Kontakt work, but the word Information does not. To me, &quot;readme&quot; is not sufficient, but this concern might be negated by the fact GitHub by default renders the readme.md directly on the project home page. While it has been ruled that the Impressum does not necessarily have to be directly on the home page (for GitHub, that would be the company's/users profile page), it must still be readily available in an intuitive location. I don't know if putting it in a project page satisfies the legal requirement. If it was sufficient, it's also likely that each project would have to have an Impressum so that it can't be missed. Examples The dominant pattern that I could find1 on GitHub is an off-site link to the Impressum contained in the profile page's byline right underneath the title. Examples: https://github.com/sedadigital, https://github.com/comsysto, https://github.com/znes, https://github.com/eSagu, https://github.com/TIBHannover. I'm almost certain this meets or exceeds the legal requirements. Example screenshot: Additionally, I found a few that had a repository specifically for an Impressum. Example: https://github.com/johsteffens. Since these repositories were clearly visible on the user's main page (either because there weren't enough repositories to make them span multiple pages, or because it was specifically pinned to the main page), I would argue these also meet the legal requirement for being readily available. While I didn't find any examples of it, another possibility would be to combine the above two approaches, having a link in the byline that links to an Impressum repository or some other page within GitHub. This would be useful if you didn't otherwise have an Impressum hosted elsewhere. There were also scattered examples of people placing an Impressum on a project wiki page or on an impressum.md file at the top level. However, none of the users I looked at were consistent in doing this across all their projects. Also as previously mentioned, it's questionable whether not having it on the main user profile page meets the legal requirement. The Wiki page in particular I don't think meets the requirement that it can easily be found. Found using the following Google search: site:github.com impressum -impressum.php -impressum.html -impressum.jsp -impressum-manager -github.io -issue. Exclusions meant to filter out a lot of false positives, mostly projects for websites that had their Impressum in code format meant for deploy and not for display on GitHub itself.
The cost of filing a copyright for an updated filing would generally be the same as the original one. The amount of work isn't much different and there are good reasons why every new version of software sold on a large volume commercial basis should always have a new copyright registration for a new version of the software, which are essentially the same reasons you copyright the original version of the software in the first place. As noted by @DavidSiegel in a comment: A work is protected the moment it is &quot;fixed in tangible form&quot;, but one cannot sue for infringement unless the work is already registered under 17 USC 411. Statutory damages, often important, are not available unless the work is registered before the infringement occurs, or within 3 months of publication, under 17 USC 412. $2,000 is on the high side for the work in the Colorado market where I do most of my work, but it isn't unheard of or terribly beyond the norm. I can think of at least five plausible and defensible reasons for a fairly high charge for a fairly simple job. This said, sometimes people just charge more than the going rate for work for no good reason, and in a free market, people are allowed to do that, at the risk that someone will go to the competition instead at some point. One reason: value billing Many lawyers do that kind of work on a flat fee basis, spreading the significant costs they incur in putting together an efficient system over many cases. They can do the work efficiently but want to charge a rate competitive only with lawyers who aren't so efficient and have to figure things out from scratch each time. A second possible reasons: diseconomies of scale Part of what may be going on is that if you have a big bureaucratic law firm, there are significant firm wide costs to every new matter (which, for example, has to be cleared through a conflict check firm-wide and involves quite a few administrative set up costs), especially if the firm charges high hourly rates. In firms with those kinds of economics, even a project that only takes two hours at $400+ per attorney hour to do the core legal work, would be hard for the firm to make a profit on, because there might easily be $1,200 in anticipated setup and shut down, and tail case monitoring costs. While some of those costs could, in theory, be streamlined when doing repeat work like the job suggested in the question, large or high cost bureaucratic firms aren't necessarily bothered to provide discounts in those circumstances to repeat customers because they see that kind of job as nickel and dime work that distracts them from working on their core competency of high-end big litigation cases, and big transactions like mergers of medium and large sized companies. It would probably be possible for a small, more nimble firm that doesn't see this kind of job as a distraction to get the fee for this down to $500-$1000. This cost issue with small transactional matters is one of the reasons that it is quite common to see the intellectual property department of large firms break off from the large firm bureaucracy (I recall it taking immense efforts just to requisition new office supplies when I worked in one because there was so much red tape involved), to form vastly smaller &quot;boutique&quot; intellectual property speciality law firms (e.g. 5-25 lawyers breaking off from a 100-500+ lawyer law firm) to prevent that kind of cost creep for smaller matters. The economics of high end intellectual property transactional work is different than a lot of big law firm work because a lot of intellectual property transactional work is high volume, low dollar transactions for repeat clients, which makes the friction associated with big law firm bureaucracies outweigh their benefits. A third possible reason: price for this job doesn't matter much in the context of a larger attorney-client relationship On the other hand, if you have a big company that normally uses a big inefficient law firm for its work (since most of its legal work involves life or death of the company grade issues where winning is much more important than keeping legal fees to a minimum), and it has a low volume of intellectual property filings, it may be more efficient for that big company to simply pay a bit more than it could if it really tries to get its costs down to a bare minimum, to just continue to use its regular law firm for this bit of work. The cost of vetting an alternative law firm may not be worth it for a big company. Bidding out the small project might save a few thousand dollars a year of legal fees, but if the big company normally has hundreds of thousands of dollars a year of legal fees anyway, this may not be a big deal for that big company client. A fourth possible reason: a bigger ability to make malpractice right Also, keep in mind that if the software has very high economic value, a big part of your $2000 flat legal fee for the work may be paying for the malpractice policy to make the client whole in the unlikely but inevitable event for a screwed up filing that has high stakes to the client in the rare cases where it happens. For example, I recall a malpractice case my office once handled where a big firm failed to file a key document in the real estate records resulting in a $20 million dollar mortgage losing its priority when the borrower default on the loan made by the client due to a miscommunication between a junior lawyer and a paralegal over who was going to get that job done that resulted in neither person doing it. This resulted in an immense loss to the client (they only recovered about $2 million and would have recovered the full amount if this document had been filed on time as the law firm agreed it would). It doesn't happen often, but it happens. In the same vein, if your software product generates $20 million a year in revenues and a small, lower charging firm screws up in a way that materially impairs the copyright protection available for that product (e.g. causing statutory damages to be unavailable when large statutory damages would otherwise almost surely have been awarded), a small law firm's malpractice policy and the responsible lawyer's assets may not even begin to cover the harm done, but a big law firm's malpractice policy, which is far more expensive and makes everything that the big law firm does much more expensive to clients, might easily be able to cover that loss. A fifth possible reason: the lawyer is reluctant to do the work An alternative explanation is that the lawyer could do the work, but isn't really bothered to do it unless its very lucrative, since the lawyer sees it as a distraction or just doesn't like you as a client. If this is the reason, then the lawyer is setting a high charge to encourage you to go elsewhere, without saying anything that would cause you to lose face or that would damage the long term lawyer-client relationship in a future case that is bigger or more in the usual vein of the work that the lawyer is looking to do going forward.
The first question is whose law you are concerned with, since in principle you might have violated copyright law in any country, and might be sued under the laws of multiple countries. The US has a concept of "fair use" which is notoriously difficult to apply. When you are sued in the US, you can defend against the allegation by arguing certain things: telegraphically, this includes purpose and character of use, nature of the work, substantiality in relation to the whole, and effect on market. Plus there is a 5th factor to be considered, transformativeness. The court then weighs these factors to decide if the use is "fair". By reading existing case law on the topic (conveniently available from the US Copyright office) you might develop a fact-based opinion of the risk: you would be vastly better off hiring an attorney who specializes in US copyright law to do an analysis for you. Do not hire a programmer to give you legal advice (do not hire an attorney to debug code). You would "fail" on the test of substantiality in that you are copying a highly substantial portion of the original work(s). You would "win" on nature of use (research especially non-profit and commentary are the underlying purposes that drive fair use law). It's not clear how you would fare w.r.t. nature of the work, which is intended to distinguish the extremes "news report" and "literature and artistic work" where copying news is at the fair use end of the spectrum. It is not clear how you would fare on "effect on market", but probably not so badly: are you avoiding some licensing fee? Coupled with the tranformativeness consideration, you are most likely having no effect on the market, since the product that you will distribute is not the original work, but a scientific conclusion about the work. Germany has different laws, and this article would be relevant if you cared about Germany. There was a change in the law that expanded the analog of fair use pertaining to research use. That law allows 15 percent of a work to be reproduced, distributed and made available to the public for the purpose of non-commercial scientific research. That, b.t.w., does not refer to what you are planning to do (unless you also publish quotes); for personal scientific research you may reproduce up to 75 percent. Since this is a new law only a year old, you could become part of the cutting edge in testing the limits of the law. So the standard disclaimer applies: ask your attorney. But note section 60d of the law which legalized data mining, and is squarely on point: (1) In order to enable the automatic analysis of large numbers of works (source material) for scientific research, it shall be permissible to reproduce the source material, including automatically and systematically, in order to create, particularly by means of normalisation, structuring and categorisation, a corpus which can be analysed and to make the corpus available to the public for a specifically limited circle of persons for their joint scientific research, as well as to individual third persons for the purpose of monitoring the quality of scientific research. In such cases, the user may only pursue non-commercial purposes. (2) If database works are used pursuant to subsection (1), this shall constitute customary use in accordance with section 55a, first sentence. If insubstantial parts of databases are used pursuant to subsection (1), this shall be deemed consistent with the normal utilisation of the database and with the legitimate interests of the producer of the database within the meaning of section 87b (1), second sentence, and section 87e. (3) Once the research work has been completed, the corpus and the reproductions of the source material shall be deleted; they may no longer be made available to the public. It shall, however, be permissible to transmit the corpus and the reproductions of the source material to the institutions referred to in sections 60e and 60f for the purpose of long-term storage.
Gather evidence that the software you are requesting the source code of really is based on, in whole or part, an existing open source project that has a license which requires source code to be made available, and then contact that projects copyright holders. Only they have standing to sue.
Making and sharing and using subtitles for movies is not legal. It is copyright infringement. I paint this statement with a very broad brush. The movies are copyrighted (they are original and fixed in tangible form). (17 U.S. Code § 102(a)) 17 U.S. Code § 106(2) provides that the owner of copyright has the exclusive rights to prepare and to authorize to preparation of derivative works based upon the copyrighted work. 17 U.S. Code § 101 defines derivative work as 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.... So we have established that the copyright holder has exclusive rights to authorize translations, but this exclusive right is limited by fair use. 17 U.S. Code § 107 provides some examples of fair use: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research If these subtitle files are not used for a fair use purpose (the examples cited are examples only, not an exhaustive list) then translation is infringement. If the files are used for one of the fair use purposes then § 107 also gives us the factors to determine whether that particular use is fair use: (1) the purpose and character of the use, including whether such use is of a 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.
Basically, statement 3 above is correct. The owner of the copyright in a work may release that work unmder different, even incompatible, licenses, as many times as s/he chooses to do. None of these releases cancels or invalidates any other. A person who obtains a work from a site where it is listed under a particular license, may rely on that license grant. The owner may (if the site allows) modify the license or remove the posted work, but this does not invalidate the license granted to those who obtained the work before any modification or removal. An incorrect or incomplete copyright notice does not, under current law. invalidate the copyright, and to the best of my understanding will not invalidate either of the license mentioen in the question.
You Own The Code To answer your question on whether or not it is copyright infringement: Yes, you do own the rights to the written code but posting it on Github gives Github the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it. To simply put it, no matter what license you use, you give GitHub the right to host your code and to use your code to improve their products and features. This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service, except that as part of the right to archive your Content. So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward. Things aren’t quite as clear-cut in a scenario where Copilot is trained on code that is hosted outside of GitHub. In that situation, the copyright infringement question would hinge largely on the concept of fair use. If Copilot is being trained on code outside of GitHub, we accept that at least some of what they’re looking at is copyrightable work. So, the question then becomes if it’s fair use. Now, you ultimately can’t conclude definitively that something is fair use until you go to court and a judge agrees with your assessment. But I think there’s a strong case to be made that Copilot’s use of code is very transformative, a point which would favor the fair use argument. There is precedent for this sort of situation. Take the case of Google Books, for example. Google scanned millions of books, provided people who were doing research with the ability to search the book, and provided the user a small snippet of the text that the user was searching for in the book itself. The court did in fact find that was fair use. The use was very transformative. It allowed people to search millions of books. It didn’t substitute for the book itself. It didn’t really take away anything from the copyright holders; in fact, it made it easier for readers to access the work and actually opened a broader market for book authors. And, it was a huge value add on top of the copyrighted corpus. In the latter scenario, a lot depends on the thoroughness and the length of Copilot’s suggestions. The more complex and lengthy the suggestion, the more likely it has some sort of copyrightable expression. If a suggestion is short enough, the fact that it repeats something in someone else’s code may not make it copyrightable expression. There’s also the question of whether what’s being produced is actually a copy of what’s in the corpus. That’s a little unclear right now. GitHub reports that Copilot is mostly producing brand-new material, only regurgitating copies of learned code 0.1% of the time. But, we have seen certain examples online of the suggestions and those suggestions include fairly large amounts of code and code that clearly is being copied because it even includes comments from the original source code.