On 5/16/05, Raul Miller <[EMAIL PROTECTED]> wrote: > On 5/16/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > No, the artwork (if included) would be literally infringing. The > > "mise en scene" doctrine is not about literal copying, it's about the > > creation of sequels (parodies, clones, etc.) that plagiarize the > > original work and siphon off the commercial potential of it and/or of > > derivative works. > > But the only people who can own a copy of this "sequel" are > people that own a legitimate copy of the game. > > So where is the plagarism? How does your "siphon off the > commercial potential" work in this case?
Would you like the very paragraph from Micro Star v. FormGen? Micro Star further argues that the MAP files are not derivative works because they do not, in fact, incorporate any of D/N-3D's protected expression. In particular, Micro Star makes much of the fact that the N/I MAP files reference the source art library, but do not actually contain any art files themselves. Therefore, it claims, nothing of D/N-3D's is reproduced in the MAP files. In making this argument, Micro Star misconstrues the protected work. The work that Micro Star infringes is the D/N-3D story itself--a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A copyright owner holds the right to create sequels, see Trust Co. Bank v. MGM/UA Entertainment Co., 772 F.2d 740 (11th Cir. 1985), and the stories told in the N/I MAP files are surely sequels, telling new (though somewhat repetitive) tales of Duke's fabulous adventures. A book about Duke Nukem would infringe for the same reason, even if it contained no pictures.*fn5 And this is every bit as true when the infringing work is a clone of the game engine as when it is a game scenario. The fact that the cloners haven't gotten around to getting someone to clone the artwork yet, and therefore users will need a copy (legitimately acquired or otherwise) of the artwork in order to play the game, does not make it any less an infringement. > > If you understood the meaning of "derivative work" -- as you have > > conclusively demonstrated elsewhere that you do not -- you would have > > no difficulty identifying those elements. > > This ad hominem approach of yours is getting annoying. It's a simple statement of fact. You do not understand the meaning of "derivative work". You have conclusively demonstrated this in the course of the GPL debate. > You've presented cases which show that you do not believe in your > own assertions about what derivative works mean. Specifically, > you've claimed that derivative works are disjoint from collecitive > works and anthologies, but you've also stated that the same work > can be both a derivative work and an anthology. Until you can > present a consistent view of your own beliefs, I cannot take > seriously your critiques of my understanding. Bullshit yourself if you like, but I doubt that anyone else is buying. I have explained how a derivative work and a collection / collective work / anthology differ, exhibited an example which is an anthology _of_ two derivative works (not "a derivative work and an anthology"), and cited case law out the yin-yang. The two participants in this discussion who do have legal qualifications (Humberto and Batist) have agreed that the two categories are disjoint in their respective jurisdictions -- meaning that a grant of license to create a derivative work of X does not grant license to anthologize it, and vice versa. Your latest example of a revised edition of an encyclopedia is just as easily disposed of. It's a collective work. That's because what's protected about it, as opposed to what's protected about the articles it contains, is the creative choices involved in the selection and arrangement of its contents. Note that there is a sense in which that bit of creative expression is itself derived from the selection-and-arrangement expression in the previous edition -- namely, that copyright in the 2005 edition doesn't extend the life of the copyright in the 2004 edition. Therefore, if I create a "parallel encyclopedia" with new articles on topics selected by reference to the 2004 edition of the Brittanica, it ceases to infringe when the copyright on the 2004 edition expires, and it can't be said to infringe the 2005 Brittanica thereafter. But an encyclopedia is not a "derivative work" of its articles in the sense that matters -- namely, that if I obtain a copyright holder's license to "create a derivative work" of some article, that does not give me license to put the result into my encyclopedia. At the end of the day, you have one and only one purpose in sticking to a definition of "derivative work" that has no basis in law or history -- to persist in claiming that the FSF FAQ's assertions about the GPL hold water. Evidently you do not see how that clouds your judgment about the content of statutes and legal precedents. If Debian is relying on you to make accurate assessments of what is and is not copyright infringement, Debian is in deep, deep trouble. Cheers, - Michael
