On Thu, Jun 09, 2005 at 11:11:54AM -0400, Michael B. Trausch wrote:
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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
*** EMPHASIS ***
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.
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