[Wikipedia-l] derivative works (Galoob v. Nintendo)

[Gregory Maxwell]

On Sun, 20 Mar 2005 16:32:04 -0500, Anthony DiPierro
<anthonydipierro at 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.