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Old 04-29-2006, 08:47 PM   #36
Kylotan
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Join Date: Jun 2003
Location: Nottingham, UK
Home MUD: Abattoir (Smaug)
Home MUD: ex-Jellybean (Smaug)
Home MUD: ex-Dark Chambers (Merc)
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In the case of (a), Medievia would almost certainly be ruled against. If the license is found to be totally invalid then it's going to revert to their basic fair use rights, and fair use doesn't come close to letting you use substantial portions of someone else's copyrighted work for material gain.

Even if the license is 'too restrictive', the fact that Medievia have paid nothing for it works against them (ie. DIKU owes them no reciprocal consideration in this regard) and the existence of other successful MUD systems further works against them (in that they can't claim that their inability to accept the flawed DIKU license is a significant barrier to them entering the market).

Remember, a license is a limited exception to a copyright holder's exclusive rights. The only way you typically get more rights than the license gives you is if statute somehow reserves those rights for you (eg. backups for personal use, quotations for review or parody purposes, etc). You don't suddenly gain all rights just because there is a problem with the license.

In the case of (b), this is irrelevant. Any license may have implied 3rd parties who have a bearing on the wording and intent of the license. The fact that the 3rd party is mentioned in the license is a distraction but it doesn't change the enforceability of the previous sentences. At no point does it claim to try and enter you into a contract with that 3rd party. It's purely informational.

And in the case of ©, the definition of derivative work is really quite well defined by now. If it can be shown that they've not rewritten the code from scratch in isolation from DIKU - simply rewriting around the old code until it's all replaced is not enough - then they lose on this count as well.

Of course, these things are heard case by case, but to win this they would really need the case to be heard by a pretty inept or corrupt judge.
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