There is a lot of misunderstanding here as to what constitutes a derivative work. But one need only look at Galoob v. Nintendo to dispel most of it:
"The examples of derivative works provided by the Act all physically incorporate the underlying work or works. The Act's legislative history similarly indicates that 'the infringing work must incorporate a portion of the copyrighted work in some form.'"
The infringing work must incorporate a portion of the copyrighted work in some form. This might be the storyline, as in the case of fan fiction, but if there is no incoporation of the copyrighted work in the alleged infringing work, then there is no case, and a jury wouldn't even hear the case because it would be dismissed by a judge before a jury was even selected.
Oh yeah, and by the way, the Database and Collections of Information Misappropriation Act of 2003 never passed, and phone books are generally *not* subject to copyright.
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On Sun, 20 Mar 2005 16:32:04 -0500, Anthony DiPierro anthonydipierro@hotmail.com wrote:
There is a lot of misunderstanding here as to what constitutes a derivative work. But one need only look at Galoob v. Nintendo to dispel most of it:
I've seen Galoob v. Nintendo, but I've chosen to ignore it because it doesn't apply:
"The examples of derivative works provided by the Act all physically incorporate the underlying work or works. The Act's legislative history similarly indicates that 'the infringing work must incorporate a portion of the copyrighted work in some form.'"
The Galoob case is about the "game genie" (in short a device which patches a nintendo game as it's loaded)... If you include more of the courts findings you see that:
"Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work."
Right. The courts position was that it's not a derivative work for the purpose of the copyright act because it must be used *with* the original work. This is akin to distributing a set of stickys to go on a licensed copy of an encyclopedia Britannica to make one word changes to correct it's flaws. The stickys are not a derivative work because they must be used with the encyclopedia, should the stickys become useful on their own then we have exceeded the scope of Galoob v. Nintendo.
The infringing work must incorporate a portion of the copyrighted work in some form. This might be the storyline, as in the case of fan fiction, but if there is no incoporation of the copyrighted work in the alleged infringing work, then there is no case, and a jury wouldn't even hear the case because it would be dismissed by a judge before a jury was even selected.
To be infringing the work must be a derivative, so lets consult the law for what a derivative is:
"A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work". ( 17 U.S.C. §101)
Sounds like they are specifically referring to wikipedia with the text "editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship". The case of reading of text and then being inspired and writing some new text, ends up being excluded because you can not easily demonstrate it to be the result of a simple set of transformations, elaborations, commentations, or other modifications. The revision control system changes that.
Your description of what is required to infringe would be nice, but it's at odds with the law.
There is a huge amount of case law that would appear to support the bulk of wikipedia's activities at face value, for example the classic "Rosemont Enterprises, Inc. v. Random House, Inc." but which completely fail to cover the case where the proof derivative work status is so easy made by the existence of the revision history.
Please, find some caselaw that saves us from that.... Without it, I think we need to refer to the specific wording of section 101 which puts the exact sort of incremental changes done in wikipedia in peril. There isn't much caselaw on the fanfiction subject, but just about *everyone* agrees that true derivatives should be protected, and it's very clear that the political trends are towards expanding the scope of copyright and not reducing it...
Oh yeah, and by the way, the Database and Collections of Information Misappropriation Act of 2003 never passed, and phone books are generally *not* subject to copyright.
How true, I admit I was off on that one.. I did quite a bit of letter writing on that matter but assumed it would do no good, as usual. However, the issue seems to reoccur from time to time... The court finding in "FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., INC. " is very heartwarming, though I wonder why they didn't use the same sort of refer to the Constitution principles in eldgerage vs ashcroft.
There is a lot of misunderstanding here as to what constitutes a derivative work. But one need only look at Galoob v. Nintendo to dispel most of it:
I've seen Galoob v. Nintendo, but I've chosen to ignore it because it doesn't apply:
"The examples of derivative works provided by the Act all physically incorporate the underlying work or works. The Act's legislative history similarly indicates that 'the infringing work must incorporate a portion of the copyrighted work in some form.'"
The Galoob case is about the "game genie" (in short a device which patches a nintendo game as it's loaded)... If you include more of the courts findings you see that:
"Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work."
Right. The courts position was that it's not a derivative work for the purpose of the copyright act because it must be used *with* the original work.
That's not what they said. They don't link the exclusion of copyright infringement to the fact that you must use the item with the original work. That's just a description of the way it works and it has nothing to do with obiter dictum in this case.
The infringing work must incorporate a portion of the copyrighted work in some form. This might be the storyline, as in the case of fan fiction, but if there is no incoporation of the copyrighted work in the alleged infringing work, then there is no case, and a jury wouldn't even hear the case because it would be dismissed by a judge before a jury was even selected.
To be infringing the work must be a derivative, so lets consult the law for what a derivative is:
"A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work". ( 17 U.S.C. §101)
Sounds like they are specifically referring to wikipedia with the text "editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship". The case of reading of text and then being inspired and writing some new text, ends up being excluded because you can not easily demonstrate it to be the result of a simple set of transformations, elaborations, commentations, or other modifications. The revision control system changes that.
Being inspired is authorized !
What is not is to base your work upon a preexisting one. The second part of 17 U.S.C simply means that the article A+B+C is a derivative work and that A, B and C are original works as a whole.
Your description of what is required to infringe would be nice, but it's at odds with the law.
It's not. Every addition is an original work and the article is a derivative work.
There is a huge amount of case law that would appear to support the bulk of wikipedia's activities at face value, for example the classic "Rosemont Enterprises, Inc. v. Random House, Inc." but which completely fail to cover the case where the proof derivative work status is so easy made by the existence of the revision history.
There is not need to proof anything. It's case law : I can find cases in any contradictory sense you want. There is even a french girl who completely plagiarized "Gone With The Wind" but was ruled free of charges... ("la bicyclette bleue" for my fellow french companions)
Please, find some caselaw that saves us from that.... Without it, I think we need to refer to the specific wording of section 101 which puts the exact sort of incremental changes done in wikipedia in peril.
No.
It states that every addition is an original work and that only their combination is a derivative work.
There isn't much caselaw on the fanfiction subject, but just about *everyone* agrees that true derivatives should be protected, and it's very clear that the political trends are towards expanding the scope of copyright and not reducing it...
Well "dramatization"... isn't it explicitely related to Fan Fiction?
Jean-Baptiste Soufron Intellectual Property and Contracts
There is a lot of misunderstanding here as to what constitutes a derivative work. But one need only look at Galoob v. Nintendo to dispel most of it:
"The examples of derivative works provided by the Act all physically incorporate the underlying work or works. The Act's legislative history similarly indicates that 'the infringing work must incorporate a portion of the copyrighted work in some form.'"
The infringing work must incorporate a portion of the copyrighted work in some form. This might be the storyline, as in the case of fan fiction, but if there is no incoporation of the copyrighted work in the alleged infringing work, then there is no case, and a jury wouldn't even hear the case because it would be dismissed by a judge before a jury was even selected.
Oh yeah, and by the way, the Database and Collections of Information Misappropriation Act of 2003 never passed, and phone books are generally *not* subject to copyright.
Thank you.
To be more precise, phonebooks can be protected. In Europe they are protected under the database protection act from 1997 (or 1999?). Nothing in the US ?
Jean-Baptiste Soufron Intellectual Property and Contracts
There was an attempt to pass a bill through congress to protect databases and collections of information (such as phonebooks... would it include a dictionary though?) under copyright, but it didn't pass.
So currently, I can make my own phonebook using the database from the phone company, sell it at $1mil each, and not be penalised.
Mark
On Mon, 21 Mar 2005 02:17:25 +0100, Jean-Baptiste Soufron jbsoufron@free.fr wrote:
There is a lot of misunderstanding here as to what constitutes a derivative work. But one need only look at Galoob v. Nintendo to dispel most of it:
"The examples of derivative works provided by the Act all physically incorporate the underlying work or works. The Act's legislative history similarly indicates that 'the infringing work must incorporate a portion of the copyrighted work in some form.'"
The infringing work must incorporate a portion of the copyrighted work in some form. This might be the storyline, as in the case of fan fiction, but if there is no incoporation of the copyrighted work in the alleged infringing work, then there is no case, and a jury wouldn't even hear the case because it would be dismissed by a judge before a jury was even selected.
Oh yeah, and by the way, the Database and Collections of Information Misappropriation Act of 2003 never passed, and phone books are generally *not* subject to copyright.
Thank you.
To be more precise, phonebooks can be protected. In Europe they are protected under the database protection act from 1997 (or 1999?). Nothing in the US ?
Jean-Baptiste Soufron Intellectual Property and Contracts
Wikipedia-l mailing list Wikipedia-l@Wikimedia.org http://mail.wikipedia.org/mailman/listinfo/wikipedia-l
What about Unfair Commerce or something like that ?
That is so efficicent in Europe that the database is never actually enforced. Every Lawyer are using the unfair commerce system.
There was an attempt to pass a bill through congress to protect databases and collections of information (such as phonebooks... would it include a dictionary though?) under copyright, but it didn't pass.
So currently, I can make my own phonebook using the database from the phone company, sell it at $1mil each, and not be penalised.
Mark
On Mon, 21 Mar 2005 02:17:25 +0100, Jean-Baptiste Soufron jbsoufron@free.fr wrote:
There is a lot of misunderstanding here as to what constitutes a derivative work. But one need only look at Galoob v. Nintendo to dispel most of it:
"The examples of derivative works provided by the Act all physically incorporate the underlying work or works. The Act's legislative history similarly indicates that 'the infringing work must incorporate a portion of the copyrighted work in some form.'"
The infringing work must incorporate a portion of the copyrighted work in some form. This might be the storyline, as in the case of fan fiction, but if there is no incoporation of the copyrighted work in the alleged infringing work, then there is no case, and a jury wouldn't even hear the case because it would be dismissed by a judge before a jury was even selected.
Oh yeah, and by the way, the Database and Collections of Information Misappropriation Act of 2003 never passed, and phone books are generally *not* subject to copyright.
Thank you.
To be more precise, phonebooks can be protected. In Europe they are protected under the database protection act from 1997 (or 1999?). Nothing in the US ?
Jean-Baptiste Soufron Intellectual Property and Contracts
Wikipedia-l mailing list Wikipedia-l@Wikimedia.org http://mail.wikipedia.org/mailman/listinfo/wikipedia-l
Wikipedia-l mailing list Wikipedia-l@Wikimedia.org http://mail.wikipedia.org/mailman/listinfo/wikipedia-l
Mark Williamson wrote:
There was an attempt to pass a bill through congress to protect databases and collections of information (such as phonebooks... would it include a dictionary though?) under copyright, but it didn't pass.
So currently, I can make my own phonebook using the database from the phone company, sell it at $1mil each, and not be penalised.
Dictionaries have their own set of problems. The Webster was frequently in court during the late 19th century over infringements of its copyrights. It lost some significant cases. Cookbooks also fall into this class of works that are really a reflection of a society's collective knowledge. If I invent a dictionary definition that is identical to what is found in a published dictionary I am not infringing their copyright. If that published dictionary is an obscure one I may never have seen it, and my definition is original it's good. Often the definition may be the only one reasonably possible. For many kinds of works it is highly improbable that such a thing would happen. Dictionaries and cookbooks are exceptions. In the area of music (rather than lyrics) cases often hinge on whether the defendant was familiar with the plaintiff's work. A definition in a modern paper dictionary may itself be copied from an older public domain work, and therefore be non-copyrightable. Copying a single definition can also be fair use.
Patterns of behaviour thus become more significant if one is seeking to establish the infringement of copyrights in a dictionary. It would be difficult to establish such patterns when many editors are working independently.
Original definitions do present a different problem. If someone generates a new definition based solely on his own limited experience with life that definition can be grossly inaccurate; that speaks to the reliability of the work that contains it, which for us is Wiktionary.
Ec
Ray Saintonge wrote:
Dictionaries have their own set of problems. The Webster was frequently in court during the late 19th century over infringements of its copyrights. It lost some significant cases. Cookbooks also fall into this class of works that are really a reflection of a society's collective knowledge. If I invent a dictionary definition that is identical to what is found in a published dictionary I am not infringing their copyright.
Swedish copyright is life+70 years, but for collections of data or catalogs there is a special "catalog protection" (katalogskydd), which lasts only 15 years after the publication. Legislative texts explicitly mention phone books, TV program listings, and compilations of lunch menues of a city's restaurants as examples. It is unclear how or whether this applies to dictionaries, and I haven't found any case law. (I should add that I'm not a lawyer.) On the sliding scale from simple lists of words (spelling dictionaries) to complete encyclopedias, I guess it could be hard to draw the line exactly where catalogs end and full copyright starts. German law makes no such distinction, but seems to grant life+70 to all kinds of dictionaries.
I'm in the middle of this problem. I want to digitize some dictionaries, where the main editor died in 1922, but his two assistants died in the 1950s and 1960s. If these dictionaries are covered by 15 years of "catalog protection" I could just go ahead, but if they are covered by life+70 I must either ask the heirs for permission or refrain from digitizing. The only dictionaries that I have digitized are old enough to be outside of life+70:
Swedish-Latin, 1875, http://runeberg.org/swelatin/ Swedish-German, 1919, http://runeberg.org/hoppe/ Swedish spelling, 1923, http://runeberg.org/saol/8/
Any pointers to case law (such as the Webster cases) would be interesting to me.
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