I wrote: > The contributory / direct infringement difference is kind of > interesting from a tactical point of view ... followed by some discussion about the Micro Star opinion that was more inarticulate than usual.
The point I was trying to make, in sentences of 25 words or less: The important part of the Micro Star opinion is the exposition of why MAP files are morally equivalent to unauthorized sequels to Duke Nukem. The text of the opinion is complicated by the need to distinguish it on the facts from Galoob. The author in Galoob, in turn, felt the need to distinguish it on the facts from the Seventh Circuit's decision in Midway v. Artic. The result is a thicket of ill-conceived case law harping on technical criteria for whether or not a "derivative work" has been created. IMHO, "was a derivative work created?" is the wrong question. The right question is, "has the alleged infringer used the original's creative expression in a way that Congress intended to reserve to the copyright holder?" Piecewise "recycling" of existing works, whether by the original author or by enterprising aftermarket tweakers, is becoming more and more common. So perhaps courts should ask, "does this boost usability of the existing work without really interfering with the potential for sequels? Or does it just rip the original off as a substitute for going to the trouble of writing new stuff?" >From this perspective, a speeded-up Galaxian (Midway) is kind of borderline, like a double-time punk cover of a 60's chestnut. Helping Nintendo players cheat (Galoob) has no real effect on the "creative expression", but publishing new game levels (Micro Star) does. Artificial criteria about whether an altered display is sufficiently "fixed", or whether the alleged infringement is direct or contributory, just get in the way. Maybe that's an outline of another law journal article. :-) Cheers, - Michael (IANAL, TINLA)