9 Jun
2005
9 Jun
'05
6:13 p.m.
On Thu, Jun 09, 2005 at 11:11:54AM -0400, Michael B.
Trausch wrote:
*** EMPHASIS ***
If I understand correctly, what is enforced
internationally is the Berne Convention, which I have
not read up on. I also believe that trade agreements
allowing for extradition are one of the other key
tools that the US uses to enforce copyright abroad,
though that statement's coming off the cuff and should
be subject to verification ;).
Excellent points; if you have any further refinements
or counterclaims, again, feel free to make them.
-- Travis
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Quandary wrote:
>
> I call BS. The Lotus 1-2-3 fiasco and the Apple
vs.
> MS suit are the two things that come immediately
to
> mind as legal precedence. You can't copyright
a
> "layout" (read: look and feel, menu structure,
> screen order, etc.). If you are referring to
> directory layout on the disk itself, I think you
> will have a VERY hard time trying to argue that
> it's copyrightable -- since layout is effectively
> the command-line look-and-feel for a given disk.
> You don't have to look far for proof on that,
> either; moving between various *ix distros, it's
> easy to get lost when one distro stores its files
> in a different place from where you're expecting.
>
There was no direct layout issues there.
Yes, you are correct. My argument is that layout is a
subset of look and feel. Because menu structuring *is*
included in the l&f deal, and file hierarchies are
analagous to menu hierarchies, I argue that the ruling
applies.
If you'd like to see an example such as what
I've
described, you may take a look at OpenBSD's use of
this:
http://www.openbsd.org/faq/faq3.html#ISO
This is something that the OpenBSD people
(specifically, Theo de Raadt) have held for years to
help use the law to provide a means of securing
their distribution and making it official.
Has it held up in court? Thousands of bad patents are
filed every year, and if/when they go to court for
enforcement, they are discarded. That's patent law,
but the same concept holds for -everything-: just
because you -say- something is valid under the law
does not make it so.
It is protected by Copyright because it is subject
to Title 17, Chapter 1, Section 102, Paragraph (a):
(a) Copyright protection subsists, in accordance
with this title, in original works of authorship
fixed in any tangible medium of expression,
now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or
device.
(b) In no case does copyright protection for an
original work of authorship extend to any idea,
procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated,
or embodied in such work.
I can copyright the following:
My filesystem layout. Copyright 2005, me. All rights
reserved.
/boot/
/dev/hda
/dev/hda1
/dev/hda2
/dev/hdb
/dev/hdb1
/etc/rc
No one is allowed to copy that text, but anyone is
allowed to implement the idea behind it -- i.e., a
heirarchal filesystem with the specified directories
and files. Well, directories and filenames are just
lists of strings like that on the disk, right? Thus,
are they not subject to copyright like my above
example? Well, using mkdir and touch (well, mknod ;),
I can come up with exactly that file layout, and dump
the exact same text (sans the copyright crap) using
find or ls. So... is it really the filesystem layout
that's copyrighted? No, it can't be, because I just
demonstrated how it could be duplicated by using the
implied procedure that was very clearly described by
the file listing. It is (as you put later), if
anything, that instance of the filesystem that he
created which is copyrighted.
The file-system layout of the ISO image that the
OpenBSD project has is not a "look and feel" of
anything,
It is when I'm in a bash session, ls-ing and trying to
find my way around. Note that the lotus 1-2-3 issue
was about navigation -- key bindings. Having the same
file format layout is equivalent to having the same
key bindings or navigation.
it is a particular layout of a filesystem image.
Saying that they cannot copyright an image of a
filesystem is like saying that you cannot copyright
an image taken with a
[digital]
camera: You cannot copyright the concept of ISO or
JPG, for example, but you can copyright one
particular incarnation of an ISO or JPG, in a
particular pattern of bits, as a compliation.
Actually, this is an excellent example as to why
copyright both doesn't really work and is a bit silly
in the digital age: You're claiming copyright to a big
number. If I went to court and said, "I own 42 when
it's interpreted like so..." I'd be laughed out. Even
really important numbers (like mersenne primes, that
take a -lot- of work to find) can't be copyrighted.
We're drawing a line, therefore, that is totally
arbitrary. But I digress...
Making a digital copy of his ISO *might* be copyright
infringement (though I still doubt it). However, even
in the case that it is, I can make a layout that
exactly duplicates his (with mkdir & mv), make an ISO
that is completely identical, and NOT be infringing
his copyright by distributing it (according to my
prior arguments).
Walnut Creek and other CD-compilations have done
this
for years. The CD Compilation gets the copyright,
not the general system.
I am not too familiar with Walnut Creek (I just
googled for it), but in a nutshell (groan), it sounds
like they trawl mailing lists, etc., put them on CD
and sell them.
Now, the reason this -isn't- legal is because they are
making copies without the consent of the author. It's
the offline equivalent to file sharing -- it's no more
legal for me to go out and trawl the web for MP3's,
put them on a disk and sell that as a compilation. The
fact is, I'm making copies of music that I may or may
not have the authorization to copy (depending on the
license, which is really where the whole meat of this
particular issue is). "Freely accessible archives"
give the -person requesting access to the page- the
right to download and view the contents; it does NOT
give that end-user the right to turn around and
redistribute it (UNLESS you download it, burn it, and
sell it under your Fair Use Right of First Sale,
repeating the process for each disk; this is a
loophole).
Caching proxies may also be illegal, but that's a
can of worms I don't want to get into...
Now, they may not have been taken to court, but that
doesn't mean that it's legal, nor that a judge
wouldn't find them guilty of copyright infringement.
Again, I'm going to call BS. You don't get
copyright on an aggregation of work. If I went and
copied all the articles (and ONLY the articles)
out of a newspaper that ran only syndicated
stories, the real copyright owners would have to
come after me -- the newspaper could not. The only
way the paper could come after me is if I
accidentally copied content that (1) one of their
writers wrote as a "work for hire," and that the
paper holds the copyright to, or (2) I
inadvertently copied one of their trade/service
marks, implying their endorsement of the copied
content when no such endorsement exists.
Copyright on an "aggregation of work," as you have
called it falls under Title 17, Chapter 1, Section
103, Paragraphs (a) and (b): Subject matter of
copyright: Compilations and Derivative Works. See
text:
(a) The subject matter of copyright as specified by
section 102 includes compilations and derivative
works, but protection for a work employing
preexisting material in which copyright subsists
does not extend to any part of the work in which
such material has been used unlawfully.
(b) The copyright in a compilation or derivative
work extends only to the material contributed by the author of
such work,
as distinguished from the preexisting material
employed in the work, and does not imply any
exclusive right in the preexisting material. The
copyright in such work is independent of, and does
not affect or enlarge the scope, duration,
ownership, or subsistence of, any copyright
protection in the preexisting material.
Which means that my newspaper example is spot on.
Since the look and feel of the paper cannot be
copyrighted (ordering of articles, number of columns,
etc.), and the articles are syndicated (i.e., the
paper gets a license to publish them, and doesn't hold
the copyright), the paper cannot come after me.
Well, they possibly could under some circumstances
(like if they edited an article), but this is again
assuming that they have done *nothing but aggregate*.
Translate articles to files, ordering of articles to
ordering of files, and paper to BSD, and the metaphor
is complete.
I'm not a lawyer. If you can show me something in
copyright law (and, to be clean, I'm talking US
copyright law) that proves me wrong, I'll be happy
to either adjust my argument or, if I'm outright
wrong, eat my words. However, I have spent some
quality time with title 17 (looking for
loopholes), and I'm pretty confident that I'm on-
target.
Nor am I an attorney; however, it is a matter which
I've conferred on in the past. The protections are
there in the most basic of Copyright Law, also
enforced internationally.