[sword-devel] Copyrights and derivative works

Daniel Russell sword-devel@crosswire.org
Sat, 18 Jan 2003 12:12:25 -0800

Chris Little wrote:

>A concordance is the quotation of an entire work.  It doesn't matter how
>you re-order it or in what manner you change the text, it is still
I think the examples were intended to show the *spirit* of the law. They 
were not intended to be an exhaustive list but a *representational* 
list. You can not just make up new items in the list to be covered under 
the law and then justify your invention as being the items that were 
'left out of the list because it is not exhaustive.' Anything that 
should be considered to be covered under the definition of "derivative" 
must be similar in spirit to these examples. That is exactly what 
examples are for. They are models. This is some major legal kung-fu you 
are doing here to make the concordance a derivative work. Obviously this 
kind of facisism was not the goal of the law, but perhaps using the 
twisted logic you have presented here, lawyers have made it seem thus. 
Personally i find it hard to believe that most courts would sustain 
these arguments considering the fact that a person can play a rift from 
a song, in fact the exact tune from a song, and change the words, and 
call it a parody.

>If you make B out of A, then B is a derivative of A.  If you make a
>concordance of the NIV, it necessarily requires use of the NIV--that is
>words themselves--so it is a derivative.  If you took an ASCII text of the
>NIV, gzipped it, uuencoded it, fed the result to a printer, and bound the
>printed papers without telling anyone what it really was, it would STILL
>be a derivative work.
Under these blanket definitions a person can not even write a book 
*about* another author's work(s), for example a critique, because that 
would be a "derivative" work, "necessarily requiring" the original work.

>Actual ability to reproduce the original is irrelevent, but of some
>importance is the fact that a lot of information from the source text is
>being copied, without license, into the derivative.  It is enough to glean
>a lot of details about how the NIV translates certain words without
>needing an NIV.  For example, if you know that a certain word in a certain
>verse is by some translations rendered "love" and by others "like", you
>could easily do a search on that verse to retrieve all words it contains.  
>By investigating that list for the words "love", "like", and similar, you
>can probably figure out how the NIV renders that particular word.
Perhaps i misunderstand one thing: does the concordance actually *quote* 
the NIV? does it show passages from it? If so then the concordance is 
definitely not going to be in violation of the law.

However, i was assuming the concordance was merely indexing individual 
words to the verse numbers in which they occur. In this case, i don't 
think for a moment the concordance would be in violation, although with 
a mischevious lawyer and a bumbling judge, anything is possible.

You need to make up your mind here. Your basis for why something is 
considered a "derivative" work was that the work could be reasonably 
reconstructed from the derivative. However, you now say it's irrelevant. 
Then you go on to talk about "details about how the NIV translates" 
being deduced by the individual words being *compared* to other 
translations. Once again, this is not going to lead to any place that is 
near the NIV without some major Kung-Fu reconstruction -- in fact, the 
kind that scholar try to do by piece together fragments of scrolls and 
filling in the blanks by guessing -- actually doing this from a 
concordance is even worse, since you don't have text chunks, but just 
verse numbers, and you must even use an outside source (a different 
translation) to piece the darn "NIV" (your own guess at what it is) 
together. Well by golly, it is not as though the NIV is some top secret 
thing! The fact is, a person who goes through that much trouble to 
pirate *anything* might just very well photocopy the whole thing. That 
does not mean that owning a physical copy of the NIV is wrong just 
because conceivably your friend might come to your house, and might 
steal your NIV over night, and take it to Kinkos and photocopy the whole 
thing! Nor does writing or owning a concordance automatically make that 
work in violation of copyright law just because someone *might* go 
through all the painstaking effort to reconstruct the (readily 
available) NIV text from it!

>>Being "[b]asically the same as the original" isn't necessary.  A painting
>>based on a scene from a novel isn't even remotely similar to the
>>expression in the novel, but it's a derivative work.
Although i personally think it is wrong for the copyright law to forbid 
this, i will say that it is much easier to make it do thus, since it can 
be argued that a painting represents a story.

In practice it would be extremely difficult for a painting to present 
the story. It would take a series of paintings, or a comic book, to 
represent the story. Note: if an artist earns money by having a painting 
of a scene from "Men in Black" hanging in a gallery, he is probably 
going to get sued. If a school has a fundraiser where they charge people 
to view an "art gallery" of the works of the students on campus, and one 
of the children paints their rendition of a scene from the same movie, 
no one is going to sue the school. I am not sure this is relevant, but i 
thought it was interesting how the issue of profit is usually somehow 

>>  Works that cite an
>>original work are not derivative, but that's not what concordances do.  
>>Concordances quote the entire work.
Does this one do that? Unless it shows snippets of the text for each 
word instance, it does not quote the entire work. By the way, i was once 
in Bible Quiz, where we memorized large chunks of the Bible word for 
word. When i was in it, we used the King James, but right after my last 
year, the program switched to NIV. There are children from that program 
who can quote entire books of the Bible in NIV word for word. These 
people could conceivably be considered in violation of the law, 
according to your reasoning, since their very minds and mouths can at 
will create an audio "derivative" work of the NIV..... in fact, not even 
a derivative but a *straight copy* of it. All it takes is someone to 
*listen* to these children quote, or of course, the children may 
sometimes be broadcast on Christian TV networks quoting the scripture 
(word for word).

>>But, hey, don't believe me.  Call UBS; ask them if they would consider it
>>a derivative work.  Hire a copyright lawyer; ask him if it would legally
>>be considered a derivative work.
Well i'm not criticizing what you say, but the reasoning you are 
presenting. I hope very much that you don't side with this kind of 
reasoning. :P I assume you do not. I am convinced that you can get a 
skilled lawyer to argue what i am saying. I think that what i am saying 
would hold up in court long before what you are saying would.... however 
that might not be true if some evil and strong precedents have already 
screwed things up, and that would not suprise me considering the nasty 
state our Patent and Copright systems are in. :(

At any rate, have a nice weekend! :)