thomblake comments on Deception and Self-Doubt - Less Wrong
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IANAL, but in the US some derivative works based on material still in copyright are considered infringing. For example, taking Microsoft's source code for Windows, adding some functionality, and selling it as your own OS would be infringing.
You're right - according to this PDF on copyright.gov, the requirement is that
Edit: Outside the US, of course, the rules may vary.