Re: Help about texture inclueded in stellarium
- Original Message - From: Nathanael Nerode [EMAIL PROTECTED] To: [EMAIL PROTECTED] Cc: debian-legal@lists.debian.org Sent: Saturday, July 17, 2004 9:25 PM Subject: Re: Help about texture inclueded in stellarium snip Copyright subsists automatically in photographs in most countries (apparently not Canada, I hear). The statement above about Canada is incorrect. See, e.g., definition of artistic works here http://laws.justice.gc.ca/en/C-42/38965.html#rid-38971
Re: Free Debian logos? [was: Re: GUADEC report]
Companies like Apple and General Electric would be disappointed to hear
that. I think you meant that dictionary words can't be trademarked where
those words are clearly descriptive of the goods and services in association
with which they are associated.
- Original Message -
From: Andrew Suffield [EMAIL PROTECTED]
To: debian-legal@lists.debian.org
Sent: Saturday, July 17, 2004 6:31 PM
Subject: Re: Free Debian logos? [was: Re: GUADEC report]
On Sat, Jul 17, 2004 at 03:34:08PM +0100, Lewis Jardine wrote:
Josh Triplett wrote:
A Free logo would be usable unmodified as the
logo for another project or website. That would probably cause
confusion with Debian, but it is a legitimate use for a Free logo.
- Josh Triplett
Trademarks are fundamentally different from copyrights. Things which are
too small for copyright protection (dictionary words ('windows', 'shell'
for example), geometric symbols, etc.) are still trademarkable.
You cannot trademark a dictionary word. Microsoft *lost* that lawsuit.
--
.''`. ** Debian GNU/Linux ** | Andrew Suffield
: :' : http://www.debian.org/ |
`. `' |
`- -- |
Re: Copyright on 'non-creative' data?
Also, note that at least Australia and England extend copyright protection to industrious collections (i.e., 'sweat of the brow' databases such as white pages). See, e.g., in Australia - Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited (http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/FCAFC/2002/112.html?query=%7e+desktop+marketing) in England - see many English cases cited in Desktop Marketing From: Florian Weimer [EMAIL PROTECTED] To: Debian Legal debian-legal@lists.debian.org Subject: Re: Copyright on 'non-creative' data? Date: Tue, 06 Jul 2004 05:35:12 +0200 * Jacobo Tarrio: O Domingo, 4 de Xullo de 2004 ás 20:54:48 +0100, Andrew Suffield escribía: They may be covered by database property laws in some jurisdictions. ... which are not Copyright or Intellectual Property laws [...] Wrong for Germany. Our analogue of copyright law does cover databases. _ Get fast, reliable Internet access with MSN 9 Dial-up now 2 months FREE! http://join.msn.click-url.com/go/onm00200361ave/direct/01/
Re: sendmail X license (fwd)
This happens not infrequently in the U.S. (and at least other common law countries). The foreign law is provided by the parties through argument, declarations/affidavits and expert testimony. Here is an example case where a Pennsylvania court applied Virginia law. http://www.paed.uscourts.gov/documents/opinions/99D0372P.pdf From: Walter Landry [EMAIL PROTECTED] To: debian-legal@lists.debian.org Subject: Re: sendmail X license (fwd) Date: Sun, 16 May 2004 21:17:03 -0400 (EDT) Brian Thomas Sniffen [EMAIL PROTECTED] wrote: Um, I'm not a lawyer and this is outside even my layman's-understanding of the law, but I'm certain I've seen cases proceed in the courts of location X under the laws of location Y, because a violation of a contract happened in X -- or the parties or tort are somehow in X, such that it has jurisdiction, but the contract insists on the laws of Y. So this doesn't force it to happen in a particular place, it just encourages the courts to virtualize their judges. Do you have a citation? I don't see how this could possibly work. I could see that a tort happens in place X that is decided in a court in place Y, but I don't see how you're going to get courts in one place to familiarize themselves with the laws of another place. The law is complicated enough just worrying about one place. Regards, Walter Landry [EMAIL PROTECTED] -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] _ Getting married? Find tips, tools and the latest trends at MSN Life Events. http://lifeevents.msn.com/category.aspx?cid=married
Re: license for Federal Information Processing Standards
From: Mahesh T. Pai [EMAIL PROTECTED] To: debian-legal@lists.debian.org Subject: Re: license for Federal Information Processing Standards Date: Thu, 26 Feb 2004 11:33:50 +0530 Arnoud Engelfriet said on Wed, Feb 25, 2004 at 07:59:49PM +0100,: Because the Berne Convention appears to state so. Thanks. sniP Article 5(2) of the Berne Convention specifically states The enjoyment and the exercise of these rights ... shall be independent of the existence of protection in the country of origin of the work. And under article 5(1) an author, even the US Government, can claim foreign copyrights for works that qualify as literary or artistic under the Berne Convention. Thanks for the info. But do all countries implement this part of the Berne Convention? All Berne member countries should implement this unless they have taken a reservation. I am not aware of any Berne country that has taken a reservation on this Article and of course, some countries may not fully implement their Berne obligations At least in India, recognition to works copyrighted in foreign countries is based on executive order -- not statute; and the `International Copyright Order' is, at best ambiguous on it. The relevant provision (closest to what we are discussing) says:- `7. The Term of copyright in a work shall not exceed that which is enjoyed by it in its country of origin.' This means, here, that the US Govt cannot claim copyright in its work. I suppose the Indian government would say that copyright could be claimed by the U.S. Govt except that in this particular circumstance at this time the copyright the U.S. Govt would have has a nil term. I believe the law (or whatever is enforcible in courts) in most (non US) countries would be the same. I don't think that is true. Sure other countries employ the same term limiting provision as India does but I think you would find it to be the minority view. You may want to check out Geller, International Copyright Law and Practice. This is not legal advice, etc. _ Click, drag and drop. My MSN is the simple way to design your homepage. http://click.atdmt.com/AVE/go/onm00200364ave/direct/01/
Re: Debian trademark [was: Debian GNU/w32, may ready to be started?]
This is not legal advice. No lawyer-client relationship is established. etc etc From: Steve Langasek [EMAIL PROTECTED] To: debian-devel@lists.debian.org, debian-legal@lists.debian.org Subject: Re: Debian trademark [was: Debian GNU/w32, may ready to be started?] Date: Mon, 3 Dec 2001 16:36:36 -0600 On Mon, Dec 03, 2001 at 03:43:09PM -0500, Dale Scheetz wrote: While I agree with what you say, as it has already been mentioned GNU is not a trademark. Granted. I assumed that a name as prominent as 'GNU' would have been trademarked, but it seems I was mistaken. Just because a mark/name has not been registered does not mean it is not a trademark. In most common-law countries (e.g., U.S., Canada, U.K.), trademark rights are available without registration where a name has been used by a trader in association with its (or its licensee's) wares and services to distinguish them from those of others. Registration simply provides more rights. [snip] _ Get your FREE download of MSN Explorer at http://explorer.msn.com/intl.asp
Re: xfig-doc has license problems in examples
From: Raul Miller [EMAIL PROTECTED] To: Sunnanvind Briling Fenderson [EMAIL PROTECTED] CC: debian-legal@lists.debian.org Subject: Re: xfig-doc has license problems in examples Date: Mon, 15 Oct 2001 22:50:31 -0400 On Tue, Oct 16, 2001 at 12:44:56AM +0200, Sunnanvind Briling Fenderson wrote: A copyright license is a copyrightable work. Pleasse supply a reference backing up this assertion, please. E.g., Donald v. Zack Meyer's TV, 426 F.2d 1027 (5th Cir. 1970); Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d Circ. 1958); Merritt Forbes Co. v. Newman Inv. Sec. Inc., 604 F.Supp. 943 (S.D.N.Y. 1985); Professional Sys. Supplies, Inc. v. Databank Supplies Equip. Co., 212 USPQ 693 (W.D. Okla. 1979) - just to cite some U.S. cases. _ Get your FREE download of MSN Explorer at http://explorer.msn.com/intl.asp
Interesting Microsoft license clause re open source
Please excuse cross-posting. In light of recent discussions regarding license incompatibilities, thought members of these list might be interested in this explicit statement of incompatibility in a new beta license from MS, a license which allows for the limited creation and distribution of derivative works. Comments? (c) Open Source. Recipients license rights to the Software are conditioned upon Recipient (i) not distributing such Software, in whole or in part, in conjunction with Potentially Viral Software (as defined below); and (ii) not using Potentially Viral Software (e.g. tools) to develop Recipient software which includes the Software, in whole or in part. For purposes of the foregoing, Potentially Viral Software means software which is licensed pursuant to terms that: (x) create, or purport to create, obligations for Microsoft with respect to the Software or (y) grant, or purport to grant, to any third party any rights to or immunities under Microsofts intellectual property or proprietary rights in the Software. By way of example but not limitation of the foregoing, Recipient shall not distribute the Software, in whole or in part, in conjunction with any Publicly Available Software. Publicly Available Software means each of (i) any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g. Linux) or similar licensing or distribution models; and (ii) any software that requires as a condition of use, modification and/or distribution of such software that other software distributed with such software (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; or (C) be redistributable at no charge. Publicly Available Software includes, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (A) GNUs General Public License (GPL) or Lesser/Library GPL (LGPL), (B) The Artistic License (e.g., PERL), (C) the Mozilla Public License, (D) the Netscape Public License, (E) the Sun Community Source License (SCSL), and (F) the Sun Industry Standards License (SISL). Click on Download at this URL to see the license in full - http://msdn.microsoft.com/downloads/default.asp?URL=/code/sample.asp?url=/MSDN-FILES/027/001/516/msdncompositedoc.xml _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: Combining proprietary code and GPL for in-house use
This is not legal advice. No lawyer-client relationship is established. etc etc From: Raul Miller [EMAIL PROTECTED] To: none [EMAIL PROTECTED] CC: [EMAIL PROTECTED], debian-legal@lists.debian.org Subject: Re: Combining proprietary code and GPL for in-house use Date: Fri, 22 Jun 2001 09:01:25 -0400 On Thu, Jun 21, 2001 at 11:33:31PM -0400, none wrote: My difficulty with this argument is that an owner of the copy of the GPL library has a wide right to make a derivative work on the owner's computer by virtue of the GPL and/or a more limited right in the U.S. by virtue of section 117 of the U.S. Copyright Act. If the end-user is licensed how is there infringement, whether direct, contributory or vicarious? Excuse me? I thought you held the position that writing advertising could potentially violate the old BSD copyright. This advertising is NOT a derivative work of the BSD licensed software. What I tried to express but perhaps I wasn't clear is that the advertising clause is a condition on the license. No compliance with the condition, no license grant. As I understand the point you are making now, I simply believe that such a condition would likely not be unenforceable in a U.S. court for violation of the First Amendment of the U.S. Constitution. Many agreements have these types of provisions or variants thereof and I have never heard of any those being unenforceable in a private contract matter litigated in a U.S. court. For example, consider the earlier condition in almost all open source licenses that force the user to speak the license notice, the disclaimer, etc.; consider clauses that requires the insertion of trademark or patent notices; consider any agreement that requires a publisher to publish a novel; etc. etc. I just don't see how the enforcement in a U.S. court of these private arrangements would be seen as abridging the freedom of speech. I just think the court would say the private party has abridged their own freedom of speech and didn't have to agree to the provision viz. confidentiality agreements. In any event, as Thomas notes, such a provision certainly may enforceable in other jurisdictions, many of which have no First Amendment protections. But even if the clause were found unenforceable, a legitimate argument can be raised that the whole permission fails and so the licensee has no rights (except those default rules provided by the copyright law and/or based on perhaps other bases e.g. implied license). A court has power to pencil out unenforceable provisions but rarely exercises such a power if it would upset the bargain. I think this would upset the bargain proposed by the licensor. The linking issue is a whole other matter. I am saying there that an end-user has, subject to and in compliance with the GPL license terms, a wide right to modify on the end-user's computer. I am trying to understand the basis for infringement where the user combines GPL code on the end-user's computer with another non-GPL program under broad modification/combination rights provided by the GPL (in the matter under consideration a non-GPL program and GPL library linked thereto). How can you hold this position and imagine that being a derivative work somehow must be less restrictive? -- Raul _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: Question about the old BSD license and GPL (gtkipmsg)
This is not legal advice. No lawyer-client relationship is established. etc. etc. From: [EMAIL PROTECTED] (Thomas Bushnell, BSG) To: none [EMAIL PROTECTED] CC: debian-legal@lists.debian.org Subject: Re: Question about the old BSD license and GPL (gtkipmsg) Date: 20 Jun 2001 20:04:21 -0700 none [EMAIL PROTECTED] writes: I am not sure why the BSD advertising clause is unenforceable in the U.S. To me it is a contract clause in the BSD like all other clauses therein. It's obviously not a contract, for the usual reasons. It's a public license, not a contract. By this distinction are you suggesting that all clauses that cause the licensee to forego rights are unenforceable e.g. limitation of liability? I would not think too many open source developers would be happy with that scenario. Aren't they all relying on the effectiveness of the limitation of liability clause? In any event, the BSD advertising clause seems to me to be a condition of the unilateral distribution, modification, etc. license and so no compliance with that condition suggest to me no authority under that distribution, modification, etc. license (see http://www.xfree86.org/3.3.6/COPYRIGHT2.html#5). If the BSD license is enforceable then all of its clauses are enforceable (subject to unconscionability or against public policy). If it were otherwise, then the limitation of liability (for the benefit of the developer) is also ineffective. Apparently there are first amendment reasons why that particular clause in the license is not generally thought to be enforceable in the US, though I don't know the details of the argument. I fail to see the first amendment reasons. Violation of the First Amendment to the U.S. Constitution typically requires state action. To me this is a contract matter between private parties - I don't see state action. The point is moot, however, because it is universally agreed to be enforceable in the UK, and that's enough to render it incompatible with the GPL. Never stated otherwise. Thanx for your comments. Thomas _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: Q: Combining proprietary code and GPL for in-house use
This is not legal advice. No lawyer-client relationship is established. etc. etc. From: Edmund GRIMLEY EVANS [EMAIL PROTECTED] To: debian-legal@lists.debian.org Subject: Re: Q: Combining proprietary code and GPL for in-house use Date: Thu, 21 Jun 2001 09:27:57 +0100 none [EMAIL PROTECTED]: ([T]here can be no contributory infringement by a defendant without direct infringement by another.) Henning's point which I believe is a valid one is that an end-user needs to infringe in order for someone else to be found a contributory infringer. If the end-users are licensed, there can be no contributory infringement. This is what I thought. So contributory infringement is not relevant here. By ordering us to read up about contributory infringement, I think Raul is trying to deliberately waste our time! :-) Certainly Raul is not wasting our time. It is a valid issue. I would just note out of interest that Napster tried to raise the defense that the record companies gave all end-users an implied license to the MP3s they downloaded. By Napster's argument, if the end-users are licensed, we're out of here as a contributory infringer. Needless to say that argument lost in the 9th Circuit. However, I think Raul Miller [EMAIL PROTECTED] has a much more valid point when he writes: The work comprised of P+L is being distributed, albeit using a covert mechanism. I find it plausible that the law could and should work this way. I believe the law does work in that way to some extent. The problem here is that the end-user has pretty much unfettered rights to modify P and L to create a derived work solely at the end-user level. In the absence of these licenses, it would be a whole other story. So do people agree with the following? X distributes a program P under the GPL. Y distributes a program Q under another licence which is incompatible with the GPL. Then Z starts advertising and distributing, by means of singing strippers or otherwise, a script that links P and Q together. Then Z is infringing X's copyright. And it's not a contributory infringement; it's a direct infringement according to our covert distribution doctrine. I'm quite happy with this way of thinking. It saves the GPL from being bypassed without allowing copyright holders to restrict the way data is used by people who have legitimately obtained a copy of it. My view on fixing this problem is to change the wording of the GPL to specifically cover off the scenarios to which the GPL authors object. There are just too many permutations and combinations outside of this context that could be affected by introducing the covert distribution doctrine. It is simpler to change the contract than the law. Of course, we're talking only about U.S. law here. The relevant laws in other jurisdictions may be the same or much different. Edmund -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: OpenSSL and GPLed programs
This is not legal advice. No lawyer-client relationship is established. etc. etc. From: Rick Moen [EMAIL PROTECTED] To: debian-legal@lists.debian.org Subject: Re: OpenSSL and GPLed programs Date: Thu, 21 Jun 2001 07:12:01 -0700 [Aaron Lehmann kindly posted my private comment to him that Eric A. Young's no-relicensing clause in his OpenSSL code is, as Aaron articulately puts it, a no-op.] begin Anthony Towns quotation: I specifically asked RMS about this in private mail before bringing up this thread: he indicated that this wasn't the case, but didn't have any further details to back his opinion up. It is a tribute to Richard's protean importance to free software that there actually _are_ several fields in which this would be a compelling (albeit overly concise) argument. However, copyright law isn't really one of them. I daresay that I, Aaron, and a number of other regulars here (and on license-discuss@opensource.org) are familiar enough with the usual sort of copyright law, and how licensing operates as a legal mechanism under it, to see that Young's added clause, indeed, simply cements into his licence what is already a fundamental concept of copyright law: If you don't own it, you simply cannot relicense it, by definition. It is conceivable that RMS has in mind the possibility that copyright law might vastly change in the future (leaving EAY's clause still operative in its wake), and that some very unusual legal jurisdictions might exist where copyright law has some different basis. Otherwise, it's difficult to imagine what he has in mind -- because, of course, nobody has posted it. Unfortunately I deleted the earlier correspondence on this issue so please excuse any misunderstanding. An additional basis for the clause is to turn a default rule into a breach of contract/license issue, which can have different thresholds of proof, elements of breach, etc. than relying on copyright infringement. Further, again my memory is hazy here, the clause may also limit an author from using a compatible license. Certainly the default rules prevent a derivative work author from using an incompatible license by virtue of the terms of the incompatible licenses. But the clause may also prevent a derivative work author from using license terms for that may be wholly compatible with the license for the code from which the derivative work was derived. It may be essentially super-viral (TM). But again I can't remember the exact language of the clause so please excuse me if I am way off here. As I said, OpenSSL has three obnoxious advertising clauses on its license. And they're all basically the same, making it a single issue (either substitively or exactly the infamous original-BSD obnoxious advertising clause; I'd have to re-check) -- which, I would maintain, is the _only_ genuine licensing problem with this codebase, one that is well-understood and, yes, a real headache given the explosion in usage of crypto. -- Cheers, kill -9 them all. Rick Moen Let init sort it out. [EMAIL PROTECTED] -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: Question about the old BSD license and GPL (gtkipmsg)
This is not legal advice. No lawyer-client relationship is established. etc etc From: Raul Miller [EMAIL PROTECTED] To: Chloe Hoffman [EMAIL PROTECTED] CC: [EMAIL PROTECTED], debian-legal@lists.debian.org Subject: Re: Question about the old BSD license and GPL (gtkipmsg) Date: Thu, 21 Jun 2001 10:36:42 -0400 On Thu, Jun 21, 2001 at 08:59:52AM -0400, Chloe Hoffman wrote: I fail to see the first amendment reasons. Violation of the First Amendment to the U.S. Constitution typically requires state action. To me this is a contract matter between private parties - I don't see state action. Enforcement of copyright is state action, is it not? Alternatively, it might be clearer to say that copyright law is not designed as a mechanism for prior restraint of free speech. If we're talking about enforcement of copyright in a court of law, then I would note, as summarized by Eugene Volokh (http://www.law.ucla.edu/faculty/volokh/copyinj.htm#IIA): In Harper Row, Publishers, Inc. v. Nation Enterprises,91 the Supreme Court made clear that copyright law is substantively constitutional: the First Amendment does not shield speech that infringes another's copyright.92 Copyright, the Court said, is itself an engine of free expression because it supplies the economic incentive to create and disseminate ideas.93 -- Raul _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: OpenSSL and GPLed programs
This is not legal advice. No lawyer-client relationship is established. etc etc From: [EMAIL PROTECTED] (Thomas Bushnell, BSG) To: Chloe Hoffman [EMAIL PROTECTED] CC: debian-legal@lists.debian.org Subject: Re: OpenSSL and GPLed programs Date: 21 Jun 2001 09:48:34 -0700 Chloe Hoffman [EMAIL PROTECTED] writes: An additional basis for the clause is to turn a default rule into a breach of contract/license issue, which can have different thresholds of proof, elements of breach, etc. than relying on copyright infringement. Though it's a public license, so contract issues are entirely moot, and only boil down to copyright infringement int he first place. I don't see how contract issues are entirely moot. Certainly at least the terms of the license must be interpreted to determine if they are complied with. AFAIK copyright law does not deal with such issues. Rather contract law has a long established tradition for interpreting and defining unilateral contracts. I would be interested to see cites otherwise. I am talking U.S. law here but would be interested in laws of other countries as well. Also, I am not convinced that most open source licenses are not contracts. My view is that a good argument can be made that that a licensee, in consideration for receiving the right to modify, distribute, etc the code and in consideration for foregoing the right to sue the licensor (limitation of liability) accepts the license contract by modifying, distributing, etc. the code. Indeed if it were otherwise, the limitation of liability would have no effect because the public license model you propose is unilateral. It's almost like you know a little law, but not enough to actually help in these conversations. Well I think I know a little bit of law as an attorney. I hoped I was providing useful information. I'd be happy to go away if you prefer. _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: fortunes with quotes from movies such as 'The Matrix' etc.
What is not highly visible to most is that Hollywood and book publishers have large rights clearance infrastructures. Moreover, the threat of mutual copyright destruction is strong among these established organizations i.e. you sue me for copyright infringement, I may or probably will counterclaim against you for copyright infringement. I appreciate your pragmatic and political concerns but it should be noted that strong fair use rights are primarily a U.S. concept. Fair use rights elsewhere in the world are pretty weak (even non-existent). Operating through the Internet potentially puts all these others laws into play. Also consider this case from this Pathetic Republic of Greater Stupidity - New York City: http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=searchcase=/data2/circs/2nd/977992.html BTW, many would consider the Second Circuit probably the 2nd most respected and precedential court in the U.S. with respect to copyright matters (only behind the U.S. Supreme Court) - if that means anything From: Joseph Carter [EMAIL PROTECTED] To: Viral [EMAIL PROTECTED] CC: debian-legal@lists.debian.org Subject: Re: fortunes with quotes from movies such as 'The Matrix' etc. Date: Mon, 30 Apr 2001 23:58:11 -0700 On Tue, May 01, 2001 at 10:26:53AM +0530, Viral wrote: I followed the previous thread from the archives of debian-legal last year for including fortune packages with quotes from movies etc. I understand, that this would be considered as Fair Use, as long as it is correctly attributed. However because of inclusion in the archives, CDs can be sold for profit, which makes matters complicated. So, if it is included in the non-free section, would it be ok ? The quotes are included not for the sole purpose of profit, but with accompanying software and packages. Ugh, people have been making profits indirectly off of fair-use quotations for years. If Hollywood and every book publisher known to man can do it legally, why the hell can't we? I realize that most people are worried about sue-happy corporate America trying to hunt them down wherever they are in the entire world. But c'mon people, at the rate we're going Debian itself will be declared non-free simply because the lot of us have become a bunch of cowards afraid to stand up for our principles. If we are going to not do everything that could possibly somewhere be considered illegal under some bizarre interpretation of the laws of the Pathetic Republic of Greater Stupidity (insert random country here), then we may as well all give up and go back to using proprietary software. First crypto, then mp3, then CSS modules, now the Linux kernel and the fortune databases? Debian's trademark caution seems to be taking a back seat to rampant paranoia taken to the extreme of idiocy. I'm waiting for some highly intelligent idiot to demand that gdb be moved to non-free since it can be used as a circumvention device under the DMCA and similar ridiculous laws popping up in other countries whose leaders appear to have risen from the shallow end of the gene pool. Basically, can one include fortune-matrix etc. in any part of the debian archive today, without bothering about legal trouble. If there is legal trouble to be had by distributing fortunes-matrix in main, then there are also problems with every other fortune database Debian has, plus dict-wn, and probably a large collection of other things. Attributed quotations are fair use, it's as simple as that regardless of what the MPAA, RIAA, CBAA, XYZZY, and anyone else for that matter would like you to believe. -- Joseph Carter [EMAIL PROTECTED]Free software developer KnaraKat Bite me. * TheOne gets some salt, then proceeds to nibble on KnaraKat a little bit attach3 _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: Keyspan Firmware fun
This is the kind of notice that gets deep-pocket distributors in knots. Pedigree is a major concern. Where did this code from? Is it authorized for distribution? Did some insider take this (perhaps confidential) source and add it to the distribution? The deep-pocket distributor could be sued by the owner of this code for reproduction/distribution infringement and it will be of little help to say that it got it from Debian, FSF, Red Hat, etc. For one, the limitation of liability clauses in the various open source agreements. Further, even if there was a valid claim against someone downstream, that person(s)/corporation(s)/etc. may be judgment proof. In the end, it will likely be a cost (perhaps a huge cost) of doing business that needs to be seriously considered in the distribution decision by deep-pocket distributors (or any distributor for that matter). Just some thoughts when I saw the FORE notice jump out From: David Starner [EMAIL PROTECTED] To: Greg KH [EMAIL PROTECTED], debian-legal@lists.debian.org, [EMAIL PROTECTED] Subject: Re: Keyspan Firmware fun Date: Thu, 26 Apr 2001 02:55:29 -0500 On Thu, Apr 26, 2001 at 12:33:09AM -0700, Aaron Lehmann wrote: Copyright (c) 1995-2000 FORE Systems, Inc., as an unpublished work. This This is what gets me. It's being distributed, in some cases by permanant media, to millions of random people, and it's unpublished? -- David Starner - [EMAIL PROTECTED] Pointless website: http://dvdeug.dhis.org I don't care if Bill personally has my name and reads my email and laughs at me. In fact, I'd be rather honored. - Joseph_Greg -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: license for a mix of free sw + propritary stuff
Just for interest.. here is the European Copyright Directive language with respect to reverse engineering. Note that reverse engineering is quite limited. Also, more accurately, the contractual prohibition may be null and void but there are no other consequences AFAIK e.g. fines, etc. Article 6 Decompilation 1. The authorization of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of Article 4 (a) and (b) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met: (a) these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorized to to so; (b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in subparagraph (a); and (c) these acts are confined to the parts of the original program which are necessary to achieve interoperability. 2. The provisions of paragraph 1 shall not permit the information obtained through its application: (a) to be used for goals other than to achieve the interoperability of the independently created computer program; (b) to be given to others, except when necessary for the interoperability of the independently created computer program; or (c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright. 3. In accordance with the provisions of the Berne Convention for the protection of Literary and Artistic Works, the provisions of this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the right holder's legitimate interests or conflicts with a normal exploitation of the computer program. Article 9 Continued application of other legal provisions 1. The provisions of this Directive shall be without prejudice to any other legal provisions such as those concerning patent rights, trade-marks, unfair competition, trade secrets, protection of semi-conductor products or the law of contract. Any contractual provisions contrary to Article 6 or to the exceptions provided for in Article 5 (2) and (3) shall be null and void. From: Paul Martin [EMAIL PROTECTED] To: debian-legal@lists.debian.org Subject: Re: license for a mix of free sw + propritary stuff Date: Mon, 30 Apr 2001 18:37:36 +0100 On Mon, Apr 30, 2001 at 01:13:29AM -0500, David Starner wrote: It's not in the power of a copyright license to forbid me from reverse engineering something. That would take a shrinkwrap license. In the European Union, it would be an unlawful restriction of rights, too. -- Paul Martin [EMAIL PROTECTED] -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: Irony of RSA Encryption
This is not legal advice, no attorney-client relationship is established, etc. etc. Sorry about the delay in responding...been away From: Raul Miller [EMAIL PROTECTED] To: Chloe Hoffman [EMAIL PROTECTED] CC: debian-legal@lists.debian.org Subject: Re: Irony of RSA Encryption Date: Mon, 18 Sep 2000 06:07:08 -0400 Raul Miller [EMAIL PROTECTED] wrote: Sure -- in the case of U.S. patents, they're only good for 20 years after they're issued. [But remember that they also cover the period between the time they're filed and the time they're issued, and this period can cover a number of years.] On Sun, Sep 17, 2000 at 04:27:47PM -0400, Chloe Hoffman wrote: Just a correction. U.S patent term is now, upon issuance, 20 years from the filing date of the patent. It used to be 17 years from the date of grant/issuance. While that's true, if I remember right it's irrelevant in the context of RSA. [Wasn't the RSA patent filed around some time around 1976 then issued in 1980 under the 17 year rule, then automatically extended to 20 years when that law was passed?] Just to clarify...When the U.S. moved over to 20 years, patents could have the longer of 17 years from grant or 20 years from the filing date. Either way not, 20 years from issue (unless it got some sort of term extension in special circumstances). Also, the patent is only effective from grant - no liability for infringement before issuance of the patent while it moves through the U.S. Patent and Trademark Office. Soon, when publication in the U.S. goes into effect, there will be a right to reasonable compensation/royalty (something like that - I don't have the wording around) for the period after publication (almost always 18 months from the filing date) of the patent application and issuance of the patent. Hmm... Since Legi-Slate went out of business, I've not known of an easy way of finding out the status of new laws. [And, in this case, it looks like my memory has gotten the better of me.] I don't suppose you know of a web site that tracks such things? Unfortunately I don't but the U.S. Patent and Trademark Office site has lots of info on these new changes (which are now in effect or go into effect very soon). Take a look in the Patents section at www.uspto.gov. [I know, I can always visit the library, except right now I'm about 800 miles from the library I might normally use.] Thanks, -- Raul _ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com.
Re: Python 1.6 license DFSG free ?
This is not legal advice, no attorney-client relationship is established, etc. etc. My understanding is that Virginia law would be applied by the Albanian court (provided, among other things, jurisdiction can be obtained in Albania and provided the Albanian court will accept the contractual choice of law clauses (most, but not all, jurisdictions do)). The excluding conflict of law provisions wording is intended to avoid the situation where the conflict of law provisions in Virginia would deem that some law other than Virginia's (e.g. Albanian law) should be applied to the dispute. From: Edmund GRIMLEY EVANS [EMAIL PROTECTED] To: debian-legal@lists.debian.org Subject: Re: Python 1.6 license DFSG free ? Date: Wed, 13 Sep 2000 10:32:09 +0100 I'd be interested to know what this means: 7. This License Agreement shall be governed by and interpreted in all respects by the law of the State of Virginia, excluding conflict of law provisions. If someone in Albania, say, is violating the licence, and CNRI wants to sue them in Albania, in an Albanian court, what does it mean for Virginia law to apply? Edmund -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] _ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com.
Re: Irony of RSA Encryption
This is not legal advice, no attorney-client relationship is established, etc. etc. From: Raul Miller [EMAIL PROTECTED] To: Paul Serice [EMAIL PROTECTED] CC: debian-legal Mailing List debian-legal@lists.debian.org Subject: Re: Irony of RSA Encryption Date: Fri, 15 Sep 2000 15:48:54 -0400 On Fri, Sep 15, 2000 at 02:14:01PM -0500, Paul Serice wrote: The assumption I would like to revisit is that software patents or copyright laws lead to closed software. If you consider that an assumption, you'd better start by defining what you mean by closed software. Perhaps this too is a well-discussed, but RSA going into the public domain (early or not) is a significant and rare event. It provides an excellent example and context for revisiting some basic assumptions. I'm merely making an observation (as the event passes before us in time) that the current laws can *** in most instances *** lead to open code. Sure -- in the case of U.S. patents, they're only good for 20 years after they're issued. [But remember that they also cover the period between the time they're filed and the time they're issued, and this period can cover a number of years.] Just a correction. U.S patent term is now, upon issuance, 20 years from the filing date of the patent. It used to be 17 years from the date of grant/issuance. Also, the patent is only effective from grant - no liability for infringement before issuance of the patent while it moves through the U.S. Patent and Trademark Office. Soon, when publication in the U.S. goes into effect, there will be a right to reasonable compensation/royalty (something like that - I don't have the wording around) for the period after publication (almost always 18 months from the filing date) of the patent application and issuance of the patent. Copyrights last significantly longer. Typically, we'll all be dead (of old age) long before they expire. Maybe something like the GPL only needs to be used for those few instances where people or corporations find ways to avoid the spirit of the patent and copyright systems. I hope you don't mind if I wait till long after you die before I agree with you. -- Raul -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] _ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com.
Re: Licence of SteelBlue
I would note in the U.S. (at least) however the following: § 204. Execution of transfers of copyright ownership (a)A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owners duly authorized agent. Although with the new U.S. E-sign (electronic signature legislation), the meaning of "signed" and "writing" could have a different scope than traditionally understood. I haven't studied the new enacted legislation to determine the impact. This is not legal advice, a client-attorney relationship is not hereby established, etc. etc. From: Henning Makholm [EMAIL PROTECTED] To: Tomasz Wegrzanowski [EMAIL PROTECTED] CC: Henning Makholm [EMAIL PROTECTED],Juhapekka Tolvanen [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED] Subject: Re: Licence of SteelBlue Date: 26 Jul 2000 22:02:06 +0200 Scripsit Tomasz Wegrzanowski [EMAIL PROTECTED] Nothing in copyright law allow you to make such claims in a license. A "license" means two things: 1. The permission from the owner of an intellectual property right for someone to do whatever the IPR protects. 2. The contract in which the owner of an intellectual property right agrees to give someone a license (sense 1) in exchange for certain goods or promises, to be specified in the contract. The document we're talking about is clearly a license in sense 2. You can either not accept it - in which case you will be bound by nothing - or you can accept it - in which case you will get a license (sense 1) *and* become liable to do *whatever* the contract says you agree to do in return. What these return liabilities may consist of is not governed by copyright law, but by normal contract law. It would make a perfectly legal contract to say: | Party A allows party B to copy his computer program X. | In return, party B will | 1) pet a cat, and | 2) assign to party A the copyright to any future novels he |writes featuring a protagonist with the name of John. Even though the novels may not be connected with program X by copyright law, the contract nevertheless *creates* a connection. What is *not* possible is for party A to unilaterally *offer* to party B this contract, then - without any evidence that B has accepted the contract - claim ownership of books that B write about guys named John. That is, however, not the point of the license we're discussing presently. It says that *if* I want to copy the program *and* I create patches *then* I must give these them these patches. If, somehow, I create patches *without* copying the program, then their copyright statement simply does not apply to me, and I do not have to do the things they require. -- Henning Makholm "Slip den panserraket og læg dig på jorden med ansigtet nedad!" -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of "unsubscribe". Trouble? Contact [EMAIL PROTECTED] Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of "unsubscribe". Trouble? Contact [EMAIL PROTECTED]
Re: Licence of SteelBlue
I would note in the U.S. (at least) however the following: § 204. Execution of transfers of copyright ownership (a)A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owners duly authorized agent. Although with the new U.S. E-sign (electronic signature legislation), the meaning of signed and writing could have a different scope than traditionally understood. I haven't studied the new enacted legislation to determine the impact. This is not legal advice, a client-attorney relationship is not hereby established, etc. etc. From: Henning Makholm [EMAIL PROTECTED] To: Tomasz Wegrzanowski [EMAIL PROTECTED] CC: Henning Makholm [EMAIL PROTECTED],Juhapekka Tolvanen [EMAIL PROTECTED], debian-legal@lists.debian.org, debian-devel@lists.debian.org Subject: Re: Licence of SteelBlue Date: 26 Jul 2000 22:02:06 +0200 Scripsit Tomasz Wegrzanowski [EMAIL PROTECTED] Nothing in copyright law allow you to make such claims in a license. A license means two things: 1. The permission from the owner of an intellectual property right for someone to do whatever the IPR protects. 2. The contract in which the owner of an intellectual property right agrees to give someone a license (sense 1) in exchange for certain goods or promises, to be specified in the contract. The document we're talking about is clearly a license in sense 2. You can either not accept it - in which case you will be bound by nothing - or you can accept it - in which case you will get a license (sense 1) *and* become liable to do *whatever* the contract says you agree to do in return. What these return liabilities may consist of is not governed by copyright law, but by normal contract law. It would make a perfectly legal contract to say: | Party A allows party B to copy his computer program X. | In return, party B will | 1) pet a cat, and | 2) assign to party A the copyright to any future novels he |writes featuring a protagonist with the name of John. Even though the novels may not be connected with program X by copyright law, the contract nevertheless *creates* a connection. What is *not* possible is for party A to unilaterally *offer* to party B this contract, then - without any evidence that B has accepted the contract - claim ownership of books that B write about guys named John. That is, however, not the point of the license we're discussing presently. It says that *if* I want to copy the program *and* I create patches *then* I must give these them these patches. If, somehow, I create patches *without* copying the program, then their copyright statement simply does not apply to me, and I do not have to do the things they require. -- Henning Makholm Slip den panserraket og læg dig på jorden med ansigtet nedad! -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com
Re: SGI Free SW license 1.1 compatability with Xfree86 style license
Note: I was just simply responding to your equivalence of the indemnity clause cited below (note at the time of my response all I was going on was the snippet quoted by Henning) with a no warranty clause. Digging the license out, it seems there already is a pretty clear no warranty clause so by normal contract interpretation the other clause would have a different purpose. I read the first line of section 11 as simply saying that the licensee is on its own for all losses caused to it by virtue of the use of the license rights i.e. SGI is giving no indemnity, whether for third-party claims or as between the SGI and the licensee. 9. DISCLAIMER OF WARRANTY. COVERED CODE IS PROVIDED AS IS. ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS ARE DISCLAIMED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SGI ASSUMES NO RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, SGI ASSUMES NO COST OR LIABILITY FOR SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY IS AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY COVERED CODE IS AUTHORIZED HEREUNDER EXCEPT SUBJECT TO THIS DISCLAIMER. From: James LewisMoss [EMAIL PROTECTED] To: debian-legal@lists.debian.org Subject: Re: SGI Free SW license 1.1 compatability with Xfree86 style license Date: 06 Jul 2000 21:00:34 -0400 On Thu, 06 Jul 2000 11:38:21 EDT, Chloe Hoffman [EMAIL PROTECTED] said: Chloe Actually Henning's understanding of the nature of the clause Chloe is correct. An indemnity is a different animal than a Chloe warranty - they are not synonymous. A (no) warranty clause in Chloe a software license typically addresses what a licensor Chloe guarantees (or does not guarantee) with respect to the Chloe software. If the licensor does not live up to the warranty (if Chloe any) e.g. a warranty that the software would comply with the Chloe docs was provided and the software does not, the remedy is Chloe typically breach of contract/termination (although sometimes Chloe other remedies are provided) and the damages would involve the Chloe damages suffered by the licensee (subject to limitation of Chloe liability clauses). Chloe An indemnity however typically goes after a different concern Chloe (although it can overlap in coverage in some cases with a Chloe warranty e.g. intellectual property infringement and a Chloe warranty of title). An indemnity in a software license Chloe typically addresses losses caused by third parties to one of Chloe the contracting parties. In this case, the clause is trying to Chloe protect SGI (licensor) from losses caused by its licensees' Chloe use of the SGI code e.g. product liability suits brought by Chloe third parties against SGI caused by the licensee(s), Chloe third-party IP suits against SGI caused by the licensee(s), Chloe etc. A warranty provided (or not) by SGI won't get them that Chloe protection because the warranty/no warranty clause puts no Chloe obligation on the licensee(s). SGI could require a warranty Chloe from its licensees but that probably wouldn't give it the Chloe remedies it wants i.e. SGI doesn't merely want to terminate Chloe the agreement - it wants its losses to be covered. The type of Chloe indemnity below is common in OEM/software distribution Chloe agreements as well as in redistributables sections of Chloe off-the-shelf commercial software licenses. Thank you for the clarification. Still I don't read Henning's interpretation there (or in what you've said above). It's not SGI can sue you if you use their software to compete with them. It's if someone uses their software they've gotten from you and that someone sues SGI takes no responsibility for that someone and they are all your problem. Is this an accurate reading of the above? Or is there more there? Jim This is not legal advice; just academic discussion. No attorney-client relationship is established, etc. Sorry but got to do this to protect myself SGI can sue you for any valid cause of action, with or without the contract, whether or not you use (, distribute, etc.) their software or not (of course whether SGI will be successful is another matter). Certainly, the primary goal of an indemnity is typically to cover off third-party actions. If there is something of dispute between the parties no contract is required to provide the damaged party the ability to obtain compensation since the damaged party can simply sue the other; the same can't simply be said of actions brought against one of the parties by third parties. Nevertheless, sometimes an indemnity is intentionally drafted to cover losses caused by one party to the other (typically for some procedural and substantive reasons). For example, such indemnities often cover breaches of representations and warranties (note that language
Re: SGI Free SW license 1.1 compatability with Xfree86 style license
Actually Henning's understanding of the nature of the clause is correct. An indemnity is a different animal than a warranty - they are not synonymous. A (no) warranty clause in a software license typically addresses what a licensor guarantees (or does not guarantee) with respect to the software. If the licensor does not live up to the warranty (if any) e.g. a warranty that the software would comply with the docs was provided and the software does not, the remedy is typically breach of contract/termination (although sometimes other remedies are provided) and the damages would involve the damages suffered by the licensee (subject to limitation of liability clauses). An indemnity however typically goes after a different concern (although it can overlap in coverage in some cases with a warranty e.g. intellectual property infringement and a warranty of title). An indemnity in a software license typically addresses losses caused by third parties to one of the contracting parties. In this case, the clause is trying to protect SGI (licensor) from losses caused by its licensees' use of the SGI code e.g. product liability suits brought by third parties against SGI caused by the licensee(s), third-party IP suits against SGI caused by the licensee(s), etc. A warranty provided (or not) by SGI won't get them that protection because the warranty/no warranty clause puts no obligation on the licensee(s). SGI could require a warranty from its licensees but that probably wouldn't give it the remedies it wants i.e. SGI doesn't merely want to terminate the agreement - it wants its losses to be covered. The type of indemnity below is common in OEM/software distribution agreements as well as in redistributables sections of off-the-shelf commercial software licenses. This is not legal advice, no attorney-client relationship is established, etc. etc. From: James LewisMoss [EMAIL PROTECTED] To: Henning Makholm [EMAIL PROTECTED] CC: James LewisMoss [EMAIL PROTECTED], debian-legal@lists.debian.org Subject: Re: SGI Free SW license 1.1 compatability with Xfree86 style license Date: 05 Jul 2000 22:04:31 -0400 On 05 Jul 2000 16:05:56 +0200, Henning Makholm [EMAIL PROTECTED] said: Henning Scripsit James LewisMoss [EMAIL PROTECTED] On 30 Jun 2000 18:49:01 +0200, Henning Makholm [EMAIL PROTECTED] said: Henning That is a very broad clause: Recipient will .. indemnify Henning .. SGI from, .. any loss ... arising out of Recipient's use Henning .. of the Covered Code. That seems to mean that if I use Henning the software in a business that competes successfully with Henning SGI, they could sue me and demand that I pay up for their Henning lost profits. If that's a legal interpretation I'd say this Henning is quite nonfree. This reads to me just as a no warranty clause. Henning That is probably the intent of it. However, can you refuse Henning that my reading is one of the cases the language actually Henning covers? Actually yes. It looks like a standard no warranty clause. It uses big words and could have been clearer by just saying NO WARRANTY, but I don't see your reading in it. Jim -- @James LewisMoss [EMAIL PROTECTED] | Blessed Be! @http://jimdres.home.mindspring.com | Linux is kewl! @Argue for your limitations and sure enough, they're yours. Bach -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com
Re: Would this be applicable to the API issue?
Just some follow-up for those who may be interested Sorry butThis is not legal advice, no attorney-client relationship is established hereby, etc. etc. From: Mike Bilow [EMAIL PROTECTED] To: Chloe Hoffman [EMAIL PROTECTED] CC: debian-legal@lists.debian.org Subject: Re: Would this be applicable to the API issue? Date: Thu, 8 Jun 2000 03:39:06 -0400 (EDT) snip I think the Apple/eMachines case is something of an aberration in being taken seriously. I am not so sure. I think iMacs have a pretty distinctive shape (trade dress) and when I see them I know they are Apple's. Perhaps it can be argued that the iMac design is functional - an aspect of the test not mentioned in the article - that is whether the particular feature(s) of the product are essential to the user or purpose of the article. To me, the iMac looks like a case made in the natural shape of the CRT and given a funny color, which is hardly in itself sufficient to justify a protectable claim. But that's not the legal standard. The analysis is whether the shape is functional (perhaps an issue of dispute), is distinctive (iMacs don't look like your run of the mill beige box) and it identifies the source of the goods to which the trade dress is applied (I think a good survey would show most people identify the iMac shape with Apple). My argument on the iMac rests primarily on the claim of distinctiveness. I think there is very strong argument to be made that the iMac shape is not _inherently_ distinctive: it is not appreciably different than a Lear-Siegler ADM3 terminal or an ADDS Regent terminal, for example, and the shape is simply that of the CRT inside the monitor box. One might argue that, since the vast majority of the public has neither seen nor heard of these ancient terminals and has no idea of the natural shape of a CRT, then Apple has through advertising bestowed a secondary meaning onto their shape which is not otherwise inherently distinctive. Getting into the details of distinctiveness, I believe the U.S. Supreme Court recently opined that product design trade dress requires a showing of secondary meaning (as you allude to). See the very recent (March, 2000) Walmart v. Samara decision here: http://www.supremecourtus.gov/opinions/99pdf/99-150.pdf Certainly, secondary meaning is a higher threshold than inherent distinctiveness but I wouldn't be surprised that Apple could meet it. Notwithstanding what the law requires, I would think Apple would be able to show inherent distinctiveness. I think the iMac is unique in its use of a rounded all-in-one design with translucent neon-colored materials along with a round disc on the back that includes a handle. Can't say I have ever seen an old terminal look anything like that. I don't know the terminals you mentioned. Do they have those features? FYI, here is a quote from a Ladas Parry (an IP firm) newsletter: The application of this provision to product configuration was considered by the Tokyo District Court in considering an application for a preliminary injunction in Apple Computer Inc. v. Sotec Corporation. The product in question was Apple's iMac computer which went on sale in Japan in August 1998. The defendant's product was announced in July 1999. The judge found that both it and the defendant's computer had blue and white semi-transparent plastic coatings and rounded all in-one designs. The judge also found that the iMac design had striking originality, the product had been a commercial success and that advertisement of the product had put emphasis on its design. Under such circumstances the configuration of the product could be a protectable indication of goods under the Unfair Competition Law. A preliminary injunction was granted. snip Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com
Re: complete clone of the debian website
From: [EMAIL PROTECTED] (Thomas Bushnell, BSG) To: Chloe Hoffman [EMAIL PROTECTED] CC: debian-legal@lists.debian.org Subject: Re: complete clone of the debian website Date: 07 Jun 2000 20:46:33 -0400 Chloe Hoffman [EMAIL PROTECTED] writes: All rights reserved is not necessary. This is just a legacy from the past which I believe is no longer required - you had to use that language in order to get certain protections in some Latin America countries but no longer. All rights are reserved automatically in the absence of a license (whether express or implied). All Rights Reserved was a magic phrase necessary for copyright protection under the Pan-American Copyright Treaty. It is my understanding that there are still signatories to this treaty which have not agreed to the Berne Convention, so it's still a good idea to continue to say All Rights Reserved to be sure to have protection in such countries. Thomas It certainly doesn't hurt to use All Rights Reserved. After all it could help to negate an implied license. I haven't researched the status of Buenos Aires or whether all countries are now members of Berne but this is what Terry Carroll says in his excellent FAQ: 3.10) What does All Rights Reserved mean? One of the earliest international copyright treaties to which the U.S. was a member was the 1911 Buenos Aires Convention on Literary and Artistic Copyrights (see section 4.1 for more information). This treaty provided that, once copyright was obtained for a work in one signatory country, all other signatories accorded protection as well without requiring any further formalities (i.e., notice or registration), provided that the work contained a notice reserving these rights. The typical notice complying with Buenos Aires was All Rights Reserved. As noted in section 4.1, the Buenos Aires Convention is essentially dead today, and the All Rights Reserved notice no longer serves much useful purpose. It lives on mostly as a testament to inertia on the part of U.S. publishers. Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com
Re: Would this be applicable to the API issue?
See comments interspered below. Of course, we're talking about U.S. law here so your mileage may vary in other countries. There is certainly no complete harmony (although partial harmony on some aspects is starting to happen) around the world on almost every IP right. This is not legal advice, no attorney-client relationship is established, etc. etc. From: Mike Bilow [EMAIL PROTECTED] To: Andrew Weiss [EMAIL PROTECTED] CC: debian-legal@lists.debian.org, debian-user@lists.debian.org Subject: Re: Would this be applicable to the API issue? Date: Mon, 5 Jun 2000 11:54:26 -0400 (EDT) In general, trade dress is a fairly weak concept. I don't know if I'd go so far as to say it is weak. The case for confusion I would imagine is typically more difficult than for a normal word trademark and it must past the functionality hurdle but other than that it is fairly much like any other trademark. Indeed trade dress can be registered as a trademark at least in the U.S. Taco Cabana won damages - see the U.S. Supreme Court case here http://caselaw.findlaw.com/scripts/getcase.pl?court=usvol=505invol=763 As a basis for suit in this case, I would not think trade dress infringement would be the strongest claim (although that doesn't mean it shouldn't be raised). I would think the copyright infringement / breach of contract case is much stronger. Perhaps followed by trademark infringement for the use of the Debian swirl. Owens-Corning has been held, for example, to have a protectable right to make fiberglass insulation in a distinctive pink color because there is no natural association with that color and construction material. On the other hand, John Deere has been held not to have a protectable trademark interest in their distinctive green color because there is an obvious and natural association between the color green and farm equipment. Color can be a trademark separate and apart from trade dress (although certainly color can be an aspect of trade dress). That's an error in the cited article - Qualitex (the ironing board) case was a trademark case, not a trade dress case. See the U.S. Supreme Court decision in Qualitex here: http://caselaw.findlaw.com/scripts/getcase.pl?court=usvol=505invol=763 I think the Apple/eMachines case is something of an aberration in being taken seriously. I am not so sure. I think iMacs have a pretty distinctive shape (trade dress) and when I see them I know they are Apple's. Perhaps it can be argued that the iMac design is functional - an aspect of the test not mentioned in the article - that is whether the particular feature(s) of the product are essential to the user or purpose of the article. To me, the iMac looks like a case made in the natural shape of the CRT and given a funny color, which is hardly in itself sufficient to justify a protectable claim. But that's not the legal standard. The analysis is whether the shape is functional (perhaps an issue of dispute), is distinctive (iMacs don't look like your run of the mill beige box) and it identifies the source of the goods to which the trade dress is applied (I think a good survey would show most people identify the iMac shape with Apple). Taken to its logical extreme, Apple could use this argument to prohibit anyone else from making a computer that was not perfectly rectangular and beige. To make matters worse for Apple (as you note in the part of your quote I snipped), the eOne is a Windows machine and therefore very unlikely to be confused by the public with the iMac, so Apple is reduced to arguing a dilution claim. Confusion is the lynchpin I think of a suit pertaining to the iMac shape or any trade dress case for that matter. Frankly, I have not seen the alleged infringing eMachines computer nor know whether any consumer would be confused. I can't speculate whether the case is with or without merit. I also think it is overstatement that Apple could prohibit anyone else from selling a computer that was not perfectly rectangular and beige simply from a having a trade dress right in the iMac; the right is not absolute and Apple has to prove all the elements including that its design is not functional and that of confusion given the proliferation of computer shapes. Courts are pretty good at determining what is confusing and what is not. Also, trade dress would not be the only right I think Apple could assert against eMachines. I think Apple also has design patent on the iMac design - patent number D404,385 which you can look up at http://www.uspto.gov/patft/index.html More critically with regard to the Debian issue, trade dress must be applied to the actual goods or services themselves. That is, although Ferrari may claim a protectable interest in the distinctive shape of their cars, the cars are the product. An analogous claim on a web site might be argued in theory for a product which is a web site, such as Yahoo, but the Debian web site is not itself a
Re: complete clone of the debian website
See comments interspered below. Talking about U.S. law here - in other countries your mileage may vary. This is not legal advice, no attorney-client relationship established, etc. etc. From: Mike Bilow [EMAIL PROTECTED] To: Raul Miller [EMAIL PROTECTED] CC: Peter Makholm [EMAIL PROTECTED], debian-legal@lists.debian.org Subject: Re: complete clone of the debian website Date: Fri, 2 Jun 2000 12:47:31 -0400 (EDT) On 2000-06-02 at 12:07 -0400, Raul Miller wrote: On Fri, Jun 02, 2000 at 12:01:23PM -0400, Mike Bilow wrote: Yes, but it is not clear to me that this is a violation of the OPL. The problem is that the OPL is overwhelmingly concerned with, and written subject to the assumption that, it is protecting something equivalent to a book. This means that the main thrust of the protected material is the words and the _relevant_ illustrations. The exact significance of this interpretation depends on the technology used to display the text. For example, hit view source under netscape, and you'll see some rather interesting words. I recognize your point, but there is enormous uncertainty whether HTML source is subject to copyright protection at all, as distinct from rendered HTML. The problem is that copyright protects, by I don't think I would be as pessimistic. To this non-expert, HTML source really seems no different than text in a book or other kinds of source code. There is nothing in the law that I am aware of that would per se exclude HTML source (assuming that it fits within the traditional definition of literary work wherein computer code is categorized). Of course, the HTML source must meet the threshold test of originality and be more than de minimis in order to be copyrightable - and this is where certain HTML source may fail. Remember, you have to look at the work as a whole - you can't break a work into pieces and say hey that's not original otherwise nothing would obtain copyright protection. Although not determinative, the Copyright Office will register the work(s) that comprise a web site/page. See http://www.loc.gov/copyright/circs/circ66.pdf definition, an actual expression of an idea. This presupposes at least the possibility of communicating the work to another person. No requirement, in the law that I know, of a possibility of communicating the work to another person. In any event, I would think most HTML programmers could read an HTML document. And certainly the file can be communicated in the transmittal sense. Is a web site most similar to a literary work, in which the words are most important? Or is a web site most similar to a visual work, in which the overall appearance is most important? Or is a web site most similar to a computer program, in which the raw content is most important? I think this analysis is relevant to determining if there may be different types of copyright protection here. I would suggest that the HTML source is a literary work and that the screen output is a pictorial and/or graphic work. Or otherwise the HTML source/output could comprise in certain cases an audiovisual work. Each of these works could form the basis of a copyright. The OPL clearly assumes that it is being applied to a literary work, so I think that Debian is stuck with this assumption once it has chosen to license its web site under the OPL. This is not unreasonable, since the artistic components of the Debian web site, while distinctive (in the trademark sense), are by no means central to the purpose of the site. I have not carefully analyzed the OPL but I agree that it leans toward literary works. If indeed it is only restricted to literary works then perhaps other copyright works are not licensed e.g. the audiovisual or pictorial/graphic works that make up the Debian site. Perhaps an implied license (of unknown scope) applies to those works which implied license may not include the right to make derivative works. Insofar as a web site is a literary work, the unrendered parts of the HTML source are something like the binding and paper size used in a book: regardless of how distinctive and unusual they may be, such parts can never be protected by copyright. I think where part of this analysis goes the wrong way is that it ignores that a creation - a web site page - can contain different types of copyrightable works. Consider the book that contains text as well as illustrations. Copyright inheres in both the literary work as well as the pictorial and graphic works contained in the book. Similarly, I think that copyright inheres in the source itself as well as in its rendered form and so there are copyright works here at different levels. Looking only to the HTML source code itself, I would consider it like any other collection of text or other source code capable of copyright protection. If someone has made a direct or substantially similar copy (by looking at the original copy and the alleged
Re: complete clone of the debian website
See comments interspersed below. Talking about U.S. law here - your mileage may vary in other countries. This is not legal advice, no attorney-client relationship established, etc etc From: Mike Bilow [EMAIL PROTECTED] To: Raul Miller [EMAIL PROTECTED] CC: debian-legal@lists.debian.org Subject: Re: complete clone of the debian website Date: Fri, 2 Jun 2000 14:33:31 -0400 (EDT) On 2000-06-02 at 13:55 -0400, Raul Miller wrote: On Fri, Jun 02, 2000 at 12:47:31PM -0400, Mike Bilow wrote: I recognize your point, but there is enormous uncertainty whether HTML source is subject to copyright protection at all, as distinct from rendered HTML. The problem is that copyright protects, by definition, an actual expression of an idea. This presupposes at least the possibility of communicating the work to another person. Is this the same kind of uncertainty that exists about whether computer source is subject to copyright protection at all? Copyright protects the essential character of a work of authorship. Not sure what legal principle you are referring to here. If you have a cite, it would be much appreciated. My understanding of the basics of the U.S. infringement/protection analysis is whether copyright inheres (originality, de minimis, etc. assuming that the relevant work fits into a copyrightable category), whether there has been copying, and whether there is identity or substantial similarity between the work and alleged infringing work. In the case of a computer program, the source code is clearly included within the scope of essential character: because the purpose of a computer program is to be run on a computer, the source code which is used to generate the executable program is copyrightable. There is no doubt or uncertainty about this, if the source code itself is published. The source code does not need to be published in order for copyright protection to inhere. Whether copyright protection inheres in source code (assuming that it fits into one of the copyrightable works categories which it explicitly does in the literary work category in the U.S.) is whether it meets the basic originality and de minimis tests; I think no U.S. court would follow your analysis of determining whether copyright protection exits for a work of source code. In the case of a literary work, the typesetting specifications and layout are not part of the essential character of the work, and are not protected within the scope of copyright. The issue of whether page numbers are I am not sure if it's so cut and dry. The question really is whether there is originality. I could see cases where there is very unique typography and layout that could be considered copyrightable. subject to copyright has actually been litigated inconclusively. What we have here is evidence that a work has been copied. That the evidence itself might or might not be copyrightable doesn't mean that it's not evidence. No one disputes that much of the Debian web site has been copied. If Debian had a copyright notice such as All rights reserved, then All rights reserved is not necessary. This is just a legacy from the past which I believe is no longer required - you had to use that language in order to get certain protections in some Latin America countries but no longer. All rights are reserved automatically in the absence of a license (whether express or implied). this would be an open-and-shut case of copyright infringement. The problem is that Debian, for whatever reason, has chosen to license the copyright on its web site subject to the OPL. The relevant question then is: Has API violated the OPL license terms and, if so, to what extent? API is not using any of the exact words from the Debian web site in the rendered text. At most, API has used some of the exact words from the Debian web site in the unrendered text, such as the META tags. Is any unrendered text part of the essential character of a web site? That is far from clear. Assuming that the Debian home page HTML source is copyrightable (which I think it is - see discussion above), the question I think here turns on whether there has been copying (need to prove they had the source or access to the source) and then whether substantial similarity between the two exists as a whole. I don't think most would deny that if you put the Debian source next to the other source that they are virtually identical or at least substantially similar, even if you ignored the fact that the text was changed and that certain aspects of the code are dictated by standards/external factors or are conventional. No taking of the essential character analysis applicable. Of course, things get more complicated with a license. The real problem is that API has appropriated the artistic content of the Debian web site. The focus of the OPL is on the literary content of the work of authorship, in the sense that the work is a book. It is not
Re: Copyright, Patent Expirations [Was: Re: GNU License and Computer Break Ins]
By doing a little research this is what the U.K. Copyright, Design and Patents Act 1988 says about U.K. crown copyright (whether these provisions have amended I am not sure): Crown copyright. 163. (1)Where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties (a)the work qualifies for copyright protection notwithstanding section 153(1) (ordinary requirement as to qualification for copyright protection), and (b)Her Majesty is the first owner of any copyright in the work. (2)Copyright in such a work is referred to in this Part as Crown copyright, notwithstanding that it may be, or have been, assigned to another person. (3)Crown copyright in a literary, dramatic, musical or artistic work continues to subsist (a)until the end of the period of 125 years from the end of the calendar year in which the work was made, or (b)if the work is published commercially before the end of the period of 75 years from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published. There is a special carve-out for Parliamentary copyright which has different but not perpetual copyright term. I believe statement about government works in the U.S. isn't so absolute. U.S. federal government works are in the public domain but there is no express provision about works of other governmental institutions e.g. state governments. See the U.S. copyright statute as follows: § 105. Subject matter of copyright: United States Government works Copyright protection under this title is not available for any work of the United States Government,but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment,bequest,or otherwise. Note also that some works of or for the U.S. government may not necessarily be in the public domain if the government received that copyright by assignment, bequest or otherwise. And, as for Brian's comment, I would note that U.S. copyrights are expiring everyday. That said, I see his concern and agree there has to be some limit on copyright term extensions (in the U.S. and worldwide). Otherwise, in the U.S. context, the limited times wording of the U.S. Constitution becomes meaningless. The only effective way I think something can be done is to educate the public on the importance of public domain works and to move public opinion so that legislators don't enact such laws or put limits on such laws (e.g. no retroactive effect). Term extensions have occurred throughout history and a U.S. court ruling that the most recent extension violates some law could put U.S. copyright (and perhaps worldwide copyright) into jeopardy (not that some or perhaps many would be upset about that prospect). Moreover, enacting some law today to prevent future copyright term extensions won't help when some later legislature repeals the law. Thus, the need to get the public on-side now and in the future. From: Brian Ristuccia [EMAIL PROTECTED] To: Mike Bilow [EMAIL PROTECTED] CC: Paul Serice [EMAIL PROTECTED], debian-legal Mailing List debian-legal@lists.debian.org Subject: Copyright, Patent Expirations [Was: Re: GNU License and Computer Break Ins] Date: Sun, 21 May 2000 16:03:10 -0400 On Sat, May 20, 2000 at 10:08:59PM -0400, Mike Bilow wrote: Some copyrights never expire. For example, my understanding is that the UK crown copyright (a copyright owned by the government) is perpetual. The US follows almost exactly the opposite rule, where works by or for the government are in the public domain. Industry held copyrights in the US never expire either. Every time our oldest copyrights near expiration, congress extends the length of copyright by another few years. -- Brian Ristuccia [EMAIL PROTECTED] [EMAIL PROTECTED] -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED] Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com
