Hello devs & members, this may be long, but this pretty much sums up the issue on dev vs dev, members vs members. This is created for people who has a keen understanding of rules, regulations, etc. Therefore people without enough reasoning, critical thinking, sorry this is not for you.
The 'Fair Use' Rule:
When Use of Copyrighted Material is Acceptable
In some situations, you may make limited use of another's copyrighted work without asking permission or infringing on the original copyright.
Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner. The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster. It allows one to use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from their works.
Some factors to know about "Fair Use":
There are five basic factors to keep in mind when deciding whether or not a particular use of an author's work is a fair use:
Factor 1: Are You Creating Something New or Just Copying?
(the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes)
The purpose and character of your intended use of the material involved is the single most important factor in determining whether a use is a fair use. The question to ask here is whether you are merely copying someone else's work verbatim or instead using it to help create something new.
One important consideration is whether the use in question advances a socially beneficial activity like those listed in the statute: criticism, comment, news reporting, teaching, scholarship, or research. Other important considerations are whether the use is commercial or noncommercial and whether the use is “transformative.”
Noncommercial use is more likely to be deemed fair use than commercial use, and the statute expressly contrasts nonprofit educational purposes with commercial ones. However, uses made at or by a nonprofit educational institution may be deemed commercial if they are profit making.
Ask yourself:
Is the copyrighted material published or unpublished?
(Unpublished works have traditionally been accorded stronger copyright protection than published works.)
If you publish your work here at xda-developers.com, your work may lean towards to the "fair use" clause.
Is the copyrighted material factual in nature or creative?
(More fair use latitude is accorded to factual works.)
Factual works eg. scripts, mods, etc.; Creative may incorporate themes, graphics, wallpapers, bootanimation, etc.
Is the copyrighted material readily available for purchase?
(The fact that a work is unavailable for purchase through normal channels will favor fair use copying for educational purposes, though this may be mitigated if permission to copy may readily be purchased.)
This won't be an issue since custom roms are not for sale nor it is on monetary pursuit.
Factor 2: Are Your Competing With the Source You're Copying From?
(the nature of the copyrighted work)
Without consent, you ordinarily cannot use another person's protected expression in a way that impairs (or even potentially impairs) the market for his or her work. In custom roms, there is no declaration of contest nor any criteria for the "best" rom.
Whether the work is published or unpublished, and how creative the work is, are the two main considerations. Unpublished works are accorded more protection than published ones, as the author has a strong right to determine whether and when his or her work will be made public.
When it comes to fair use, unpublished works are inherently different from published works. Publishing an author/developer's unpublished work before he or she has authorized it infringes upon the author's right to decide when and whether the work will be made public.
Works that are factual and less creative are more susceptible of fair use than imaginative and highly creative works eg. if you use chobits original themes/graphics/bootanimation,etc. may constitute to infringing, but personally I do not mind if someone use my work solely based on factor 1. This is in keeping with the general principle that copyright protects expression rather than ideas or facts.
Factor 3: Giving the Author Credit Doesn't Let You Off the Hook
Some people mistakenly believe that they can use any material as long as they properly give the author credit. Not true. Giving credit and fair use are completely separate concepts. Either you have the right to use another author's material under the fair use rule or you don't. The fact that you attribute the material to the other author doesn't change that.
Credits should be given to the original author of the modifactions eg. Lidroid 14 toggles, EDT tweaks, Spareparts (incorporated in settings), if the custom rom includes these tweaks, ask yourself:
Are these tweaks/mods originally made by the developer?
Does the original developer reserves the rights for these mods?
Is the developer of these modifications, explicitly made it for public use or doesnt mind if someone else port it to their projects?
Factor 4: The More You Take, the Less Fair Your Use Is Likely to Be
(the amount and substantiality of the portion used in relation to the copyrighted work as a whole)
The more material you take, the less likely it is that your use will be a fair use. Contrary to what many people believe, there is no absolute word (scripts) limit on fair use. This is certainly a grey area for rom developers, since no one can dominantly own a sytemui.apk,framework-res.apk, etc. Developer's mod made on those files may constitute to "fair use" since Samsung, HTC, etc. do not mind modifying their base roms. Therefore modifications made on those files should be attributed if its factual or creative underlying factors 1-5.
Courts have taken both a quantitative and a qualitative approach in assessing the impact on the fair use analysis of the amount and substantiality of the portion used. What percentage of the original work has been used? There are no bright lines, but the higher the percentage, the more likely this factor is to weigh against fair use. If you use the systemui, framework, lidroid, phone of other roms it is definitely okay since the gravity of those files does not weigh out the rom's build entirely.
Ask yourself:
How much of the copyrighted work is being copied?
(did you start from fresh stock rom, deodexed it and then copy snippets of files from other roms?)
How long is the portion copied and what percentage of the work does it represent?
(The smaller the portion, the more likely the copying will qualify as fair use.)
Is the portion copied the “heart” of the work?
(Even a quantitatively small portion of a work may weigh against fair use if it is the most important or commercially valuable part of it.)
Is the amount copied limited to that which is necessary for the educational purpose to which it is being put?
(You should copy no more than is necessary for the educational/testing/sharing "without profit" purpose.)
Factor 5: Is there any adverse effect of the use on the potential market for or value of the copyrighted work?
The more important the material is to the original work, the less likely your use of it will be considered a fair use. Does copying spareparts modification, lidroid 14 toggles, etc. is "very" important for a rom's integrity/usableness? Will the rom still work without those modifications?
Use that adversely affects the market for the copyrighted work is less likely to be a fair use. This ties back to the first factor, and the question whether the putative fair use supplants or substitutes for the copyrighted work. Is there any market in Rom development? The answer is none. Developers may ask donations voluntarily, since it is not imposed, this is not a basis for any monetary gain nor their own solitary income generating project (most of them have real jobs too!) Therefore this will not constitute any harm in any market; monetarily and financially.
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In determining whether your intended use of another author's protected work constitutes a fair use, the golden rule:
Take from someone else only what you wouldn't mind someone taking from you.
I respect all developer's for sharing their work, but please ask yourself these questions before lashing out to other members:
Is the modification I have made purely original? (not ported or a derivative of other's work)
Did I share my work in good faith, so that everyone may learn from it?
Am I too stringent of my rules that it affects the Android development community?
Did I even use original graphics/pictures in my rom that can be viewed as highly original and creative?
What really is my purpose on sharing my work here in xda-developers.com?
Being a developer, did I make SGA's community a happy and healthy environment for everyone?
Did I respond to criticisms in a professional and mature manner?
How is my relationship with other developers, taking into account that this is a forum where utmost respect to each other is very important?
Am I in here just for recognition and fame?
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These post has been made, just for educational purposes only.
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