mcb@styx.UUCP (02/24/87)
There has been an interesting debate over the last couple of weeks regarding the copyright status of the Usenet News software, arising from the distribution of the version 2.11 sources with a copyright notice affixed by Rick Adams. The debate has involved a number of people who help form the core of Usenet. I know most of them personally, and those I don't know personally I have corresponded with over the last couple of years. These are GOOD people, and I hope that they will not be terribly upset when I note that some of them are spreading absolute nonsense about copyright law and the nature of public domain software. I was originally going to try to do this by private mail, but the number of people involved and the intense netwide interest in this subject seems to make this article worthwhile. Here are two points of (U.S.) copyright law as it applies to the matter at hand. They are restated in my own language, simply because I am sitting in my consulting office and am not in a law library. (Also, nobody likes to read lawyer-gobbledy-gook.) The points I state are not controversial or research areas; they are known to all copyright attorneys and most law students. If there is sufficient interest I can possibly be goaded into posting statutory and case citations. 1. YOU CANNOT COPYRIGHT A PUBLIC DOMAIN WORK IN YOUR OWN NAME. U.S. copyright law restricts the subject matter of copyrightable works to "original works of authorship." This means that you have to have written (composed, collated, coded, derived, etc.) the work. If the work IS your own, but has previously been published (this is a technical term here and has a precise definition) without a copyright notice, and it is not simply the case that you inadvertantly omitted it, the work passed into the public domain at the time of publication and cannot thereafter be copyrighted, even by the author. What this means is that the copyright notice affixed to the News 2.11 distribution is a nullity. I appreciate Rick Adams' attempt to protect netnews from greedy resellers, but it just isn't necessary, and the copyright notice creates more problems by far than it solves. The 2.11 software is (subject to the remainder of this paragraph) in the public domain. Rick Adams can arguably assert copyright in his additions and modifications, but only to the extent that they consist of "original works of authorship." Changes submitted by others would not qualify, nor would simple bug fixes or other trivial changes. Even a reorganization of the code and new routine names would not qualify. Completely new routines or extensions to the code might. It can also be argued that the 2.11 version is simply a derivative work of News 2.10 (which is unarguably in the public domain), and that all such derivatives are therefore also in the public domain. 2. YOU CANNOT (MEANINGFULLY) ASSERT AUTHORSHIP OF A PUBLIC DOMAIN WORK THAT YOU DID NOT WRITE. This is not a copyright question; copyright law is generally silent on the matter of public domain works. But asserting authorship of something that you did not write, for the purpose of selling it, is simply misrepresentation, and covered under fraud law. This has nothing to do with your right to sell the work; you may certainly assert that you have the legal right to sell (i.e., make and deliver copies of) a public domain work. Falsely asserting your authorship of a work is no different than trying to pass off your aunt's paint-by-numbers as a real Picasso; it is misrepresentation. These two complementary points render, in my mind at least, the discussion over the ownership/copyrightability of the Usenet News software (or other public domain packages) moot. There is no danger of somebody "hijacking" PD software, putting their own name on it, copyrighting it, and selling it. If somebody attempts to do this with KNOWN public domain software (e.g., you have confirmed its status with the actual author(s)), you can simply ignore the reseller. Take their name off. Delete the copyright notice. Post it to the net. And let the reseller know you are doing it. Folks, remember that a copyright notice creates no copyright in and of itself. It is a NECESSARY, but not SUFFICIENT, step in the process of assuring protection of your work. If there is no underlying copyrightability, a notice is just so many words. Oh yeah, I almost forgot my credentials and disclaimers. I am a lawyer who returned to computer science after a few years of practice, a fair amount of which dealt with computer software and intellectual property rights. I studied copyright law under Prof. Neil J. Boorstyn, who is one of the chief recognized authorities on copyright of computer software, and I have spoken on software law in various forums (forii?) here and there. I also used to be legal columnist for the late, lamented _Personal Computer Age_. Disclaimers: I have not actively practiced law for a few years, though I tend to keep up on software law matters. I remain an active member of the California Bar, which allows me to give free legal advice which (it must be understood) may be worth no more that is paid for it. I have NOT diff'ed News 2.10.3 and News 2.11 (I haven't even installed 2.11 here on styx yet), and make no firm conclusions as to copyrightability of any modifications and extensions; I WILL stand behind my opinion as to the public domain nature of any parts of 2.11 that are in 2.10 or earlier versions. Oh, and this is all based on U.S. law only, of course. Followups to news.misc, I'd say. Let's leave news.software.b to discussions of the actual code. Michael C. Berch ARPA: mcb@lll-tis-b.arpa UUCP: ...!lll-lcc!styx!mcb ...!lll-crg!styx!mcb ...!ihnp4!styx!mcb