macrakis@harvard.UUCP (Stavros Macrakis) (01/17/86)
In response to Svirsky's original query, I've assembled a few facts
from the legal literature. Along the way, I'll show that garry
@lasspvax and ron@brl-smoke have made some misstatements about the
nature of copyright coverage, by citing specific legal cases.
garry@lasspvax.UUCP says: A "copyright" is the right to control ...
copies (or elementary translations) of a sequence of words...[or] bits...
Copying words IS SUPPOSED TO BE DIFFERENT than copying *ideas*,
including the idea of what a computer program *does* ....
I answered: Copyright covers much more than the `bits'. [e.g.] [it]
covers the essential plot elements of a story and the characters...
Ron Natalie flames at me mercilessly for this:
From: ron@brl-smoke.ARPA (Ron Natalie <ron>)
WRONG, wrong, wrong. The plot is not covered, nor is the "idea"
behind a copyrighted work. What is protected is derivative works.
He is in a very narrow technical sense correct. The plot itself is
not copyrighted, and, as he says, it is `derivative works' that are
protected. ((see appendix)) But I think you will find in the cases I
present below that in layman's terms, indeed plots and characters are
copyrightable (as embodied in some work -- not in the abstract).
CASE 1. `Super Stud' PLOTS and CHARACTERS
DC Comics sued a singing telegram company which presented skits
featuring `Super Stud' and `Wonder Wench', who are dress up more or
less like Superman and Wonder Woman. Judge Shoob ruled that the Super
Stud portrayal extracts the `most characteristic and most memorable
portions of the `Superman' plots and the core of the `Superman'
stories'. The defendants take advantage of the creative effort
invested by DC to make money. Plot structure, phrases, costumes, and
names had a `striking' similarity. The skits were `sold on the
strength of their association with plaintiff's originals...'. DC won.
DC Comics v Unlimited Monkey Business
US District Court for N.Ga. 10/11/84
CASE 2. Universal's `Tiger': Donkey Kong knockoff CHARACTERS and KNOCKOFFS
Universal Studios knocked off Donkey Kong by Nintendo. N sued U.
Judge Sweet found: `Although neither ramp and ladder motifs nor
carpenters, gorilla and heroine characters are protectible in the
abstrace, DK's particular expression of a gorilla villain and a
carpenter hero (with or without a fire hat) who must dodge various
obstacles (whether bombs or fireballs) while climbing up ladders
(whether complete or broken) ... prizes ... hostage ... is protectible
against appropriation. The nearly identical musical background, the
nearly identical mark of the hero... the similar ascent of the gorilla
... all further the similarity in playing environment.... The
interaction of the characters, obstacles, background, and music in DK
are arbitrary, fanciful, and sufficiently distinctive such that they
deserve protection from a near knock-off such as Tiger.'
Nintendo v Universal Studios
US District Court for NY 1985 (lost reference)
Of course there are many cases where it is found as a matter of fact
that the plot is insufficiently derivative. And as always in
copyright law, it must be shown that the infringer had access to the
original work and could not have come up with it independently.
Other cases relevant to Svirsky's questions.
CASE 3. Dentalab CONVERSION and IMITATION
A programmer translated the essence of an EDL program, Dentcom, into
Basic without mindlessly translating it. He sold the result as `Dentlab'.
Judge vanArtsdalen wrote: `...it would be very difficult if not
impossible to literally translate a program written in EDL to a
program written in BASIC.... At least, it would be a very inefficient
method of copying a program to attempt to work solely from the source
code and literally translate it from EDL to BASIC.... [The programmer
studied] the moethod and manner that the computer receives, assembles,
calculates... data. This requires a study of the manner in which the
information flows sequentially from one function to another.... one
may [then] copy this exact manner of operation ... [into] a different
source code language.
`Direct evidence of copying is not required. Access to the original,
combined with substantial similarity, mmay be sufficient to prove by
circumstantial evidence that the accused work is a copy.... [the
programmer] had available the actual source code... [and] utilized
[it] to develop the IBM-PC Dentcom program. The almost complete
similarity between the programs would have been impossible without
direct utilization of the source code.
`...the visual screens that are displayed are almost identical in
format and even in the use of abbreviations and terminology. There is
credible evidence that prospective users... found no substantial
difference between Dentalab and Dentcom... and considered them to be
the same'
The judge ordered that Dentlab no longer be marketed and awarded
Whelan all of Jaslow's gross profits plus attorneys' fees.
Whelan Assoc. v Jaslow Dental Lab
US District Court for E Pa., 1/22/85
CASE 4. S&H copies SAS CONVERSION and IMITATION
S&H received a source license for the statistical package SAS running
on IBM's. S&H translated SAS to run on Vaxes and called it INDAS.
Chief Judge Wiseman's ruling:
(Is INDAS a copy?:) `... at least 18 examples show clear similarity.
S&H argues [that they are] similarities of idea rather than of
expression, and that in any event, [the] examples of copying are so
few and far between as to be as a matter of law trivial and
insufficient to establish <substantial> similarity.... The court has
found as a matter of fact that the expression, and not merely the
ideas, of SAS was duplicated... The question of the substantiality of
the similarity is also a question of fact; the piracy of even a
quantitatively small fragment...may be qualitatively substantial....
It certainly cannot be said that 44 specific examples of copying as a
matter of law are insubstantial.... to the extent that [the proven
copying] represents copying of the organization and structural details
of SAS, such copying pervades the entire S&H product.'
(Is INDAS a derived work?:) `it is irrelevant that the S&H product
may contain...significant original portions.... the court has found as
a matter of fact that the product was substantially and pervasively
``based upon'' SAS. ...
`The [Copyright] statute deals with human conduct, the nature of the
activity which resulted in the defendant's product. There can be no
doubt that, as even S&H's expert agreed, S&H ``targeted'' SAS for
duplication, and that it then engaged in improper conduct to achieve
what S&H itself called its ``conversion'' of SAS. The S&H product is
therefore well within the statutory definition of a derivative
work....'
The court could not determine how many of the 186,000 lines of code
were copied, but `it is enough that the starting point for [S&H's]
design was [the SAS Institute's] work.'
SAS Institute v S&H Computer Systems
District Court of ??, 3/6/85
CASE 5. Floor Trader's Method IMITATION and TRANSLATION from English
Williams wrote up and copyrighted a manual of commodity trading called
FTM. Arndt wrote up FTM in the form of a program. Williams sued.
Judge Mazzone writes:
`...[the program] made it possible for an experienced trader to reach
a decision [faster].... While the quality of the program is
determined by the quality of the programmer, it still amounts to a
translation. If it were otherwise, every expression would be open to
copying in source code form.'
`As to substantial similarity, the question is whether Arndt's works
can be recognized by a reasonable observer as having been copied from
the Williams manual.... As discussed above, it is not a defense that
the Arndt program was expressed in a computer source code. That
source code contained similarities which generated identical signals
[presumably this means trading signals] in the vast majority of
comparisons. Here, Arndt merely translated Williams' work from
English into computer language (in this case, Basic) which produced
substantially similar results.'
Williams v Arndt
US District Court for Mass. 9/23/85
----------------
Of course, none of these decisions are definitive (hardly anything in
law is). Indeed, I would guess that Case 5 (Floor Trader's Method)
will be reversed or at least severely limited by future judgements.
But these are judgements that have actually been made, and represent a
possible legal reaction to the sort of actions Svirsky was
contemplating.
Svirsky adds the additional element of giving the software away from
free. This has (as far as I can tell) several legal consequences.
First of all, since the usual damages in copyright infringement are
the gross profit of the infringer, he may not be liable for any
compensatory damages. The court may invoke punitive damages, but this
seems unlikely since by giving the software away for free, he is
showing that he's not trying to take advantage of someone else's work
to make money for himself (unjust enrichment). He may have to pay the
other side's legal fees, but this is again unlikely, especially if he
gets a lawyer's advice to go ahead. He will certainly have to pay his
own legal fees. And in any case, the court will enjoin him from
further distribution of his programs.
Of course, it is always possible that he will win. For that matter,
if he justs starts distributing the program but stops when the
copyright owner writes him a letter, I don't imagine he could lose
much. But then, as I've said before, I'm not a lawyer.
----------------
Upshot of all this? As I said in my last message,
I'm afraid that a rather over-simplified notion of copyright
protection is going around.... Copyright covers much more than the
`bits'....
Even if you translate into another language (case 3);
even if you copy only the ``organization and structural details'' (case 4);
even if you aren't copying a program but a manual (case 5);
even if you're just copying the external behavior of a program (case 1,2);
... in all these cases, you could be found to be infringing. Care to
invest in the legal fees to find out?
-s not JD, almost PhD
References
I found these cases in `BNA's Patent, Trademark, and Copyright
Journal', Vols. 29-31, published by the Bureau of National Affairs,
Inc. Any good law library should have this. I have been careful not
to infringe their copyrighted material.
---------------- (appendix)
A copyright infringement must result from copying or deriving from the
original work. Thus, if you'd never been exposed to Superman and you
came up with a being with extraordinary powers from a distant planet,
with a secret identity as a reporter, etc. etc. you would not be
infringing. But courts will assume unless you can prove to the
contrary that if a work is generally available or known (like
Superman) you had access to it. On the other hand, you couldn't get
away with calling him Superman because of DC Comics' trademark
protection.
This, by the way, is quite different from patent law. In patent law,
you don't have to know about the patent or the invention in order to
infringe.