From: medic@hardy.u.washington.edu (Travis Lauricella)
Newsgroups: misc.legal.computing,misc.legal
Subject: Re: Out of print material and copyright law
Date: 11 Jan 1993 23:21:56 GMT
Organization: University of Washington
NNTP-Posting-Host: hardy.u.washington.edu


A few days ago, Terry Carrol wrote:
 
> > [Fair use and G. Washington's letters deleted]

>Nope, you've got the right Washington.  But I was talking about when the 
>first "fair use" case was, and yep, it was that long ago.  Early 1800's, I 
>think.  I don't know what copyright terms were back then.

I'm not sure either.  I meant to look it up this weekend, but completely
forgot.  So I don't have the author of "The First Amendment and the Fourth
Estate," either.  Perhaps someone at Boston U. can help me.  He's the
professor who teaches Rights and Risks of Reporting.

>Prior to 1978, 
>copyright was governed by the Copyright Act of 1909, which called for a 28-
>year term, renewable for another 28, for a total of 56.  I have no idea what 
>it was prior to 1909.  The first copyright act was very early (1792, I 
>think), and it was rewritten in the 1800's some time, and rewritten again in 
>1909 and 1976.

Can you explain what happened to "It's a Wonderful Life"?  It's my
understanding that the copyright on it expired under unusual
circumstances. Something to do with it's renewal lapsing in the two year
period between the 1976 Copyright Act's creation and the Act's enactment.

["...Of course... copyright on GW's letters has expired..."]
 
>> [examples of derivative works: Douglas Adam's "Mostly Harmless,"
>> Deep Space Nine, Mork & Mindy, Wolf 3d]

[..."incorporating copyrighted characters and other stuff... characters,
     maybe some pictures, maybe some code"... helps define the term
     derivative work.]

Let me address this in "look and feel," below.

>> Are you talking abou making clones of games, or games merely inspired by
>> others?  That is to say, If you were the author of Tetris, and I think,
>> hmm.. I could create a game like that, and create Travtris, I have not
>> violated the copyright law by infringing on the potential for derivative
>> works?

>Now you've hit the nail of the controversy on the head.  If the "look and 
>feel" is a copyrighted element, then "clone" games which incorporate the
>same "look and feel" have derived their expression from the original game,
>and are derivative works, and are therefore infringements.  If, on the
>other hand, the look and feel is not a copyrighted element, then the
>clone game is not derived from it (in the copyright sense of the word),
>it's not a derivative  work, and therefore does not infringe.

>This area is in a great deal of flux right now, so it's impossible to give a 
>definitive answer.

Let me address the Castle Wolfenstein/Wolf3d comparison again.  If you
haven't seen each of them, let me compare.  Castle Wolfenstein came out
for the Apple //e sometime around 1985.  It used three colors, red, blue, and
white.  Moving characters were typical of most early 1980's games -- two
or three alternating sets of pixels to give the illusion of movement. 
Sound consisted of static pumped through the Apple's one speaker to give
the (not so good) auditory illusion of someone screaming german,
especially after they were shot.  When a person on the screen moved, the
speaker would make a "walking" sound, similar to the "thumpa, thumpa" of
Space Invaders.  By today's standards, it is a very weak attempt at a
fun game, but back then it was one of the best.

Wolf 3d, on the other hand, supports Soundblaster and othe audio cards,
has superb graphics and gives you a combatant's point of view, as opposed
to the "top down" view of Wolfenstein.  Someone who had not been told of
the similar names would, most likely, only see a similarity in plot
("You're captive in a Nazi prison.  Find guns, find ammo, find keys, and
escape.")

Characters, pictures, and "look and feel" are extremely different.  For
the sake of arguement, and so I don't have to go into both and compare
coding, let's say that all the coding is new, as well.  Is Wolf3d a
derivative work?  A better question: does the creator of Wolf3d (Id
Software?) have to pay the creator of Wolfenstein (Broderbund?) a cent? 
What if "Wolfenstein" isn't mentioned in the documentation or in the game?
 The names are similar, but then again, so is my Tetris-Travtris example.

>The distinction I was trying to make is that, if a game is merely "inspired 
>by" another game, but does not include any copyrighted elements from that 
>game, while one might say in an everyday sense of the word that it was 
>"derived from" the earlier work, it isn't derived from it in a copyright 
>sense.

So my example ilustrates this?  While it is, obviously, "inspired by" CW,
Wolf3d, if no contract exists between the creators, would break no copyright
laws?

[snip, snip]

>> Which basically guarantees that _somone_ will own the copyright for the
>> whole 75 year period.  I understand.  So we can expect it to be quite a
>> few years before any kind of software will be inthe public domain because
>> of lapsed copyright (and by such a time it will so pathetically outdated
>> that no one would want it anyway.)

>Exactly.  Which I think is one of the policy problems in blindly applying 
>copyright principles to a computer program as if it was a "literary work"
>and not a "useful article".  Computer programs should be the subject of a 
>sui generis legislation, not copyright.  Any legal policy which keeps
>something out of public domain until long after its lost all its value is 
>a bad policy.  But the world disagrees with me, for the most part.  :-(

Keep in mind, however, that there are very few "literary works" that are
of much value after 75 or more years, either.  But I think you and I agree
that something as ephemerous (hmm.. big word.. hope I used it right) as
software should have a shorter copyright time.  15 years?  So that
software developed in 1978 would just be available?  I think it's fair to
say that most 1978 software would have similar value to a book or sheet
music from 1918.




-- 
J. Travis Lauricella     | In the 1500's, we called it witchcraft.
<medic@u.washington.edu> | In the 1900's, we called it Murphy's Law.
                         | In the 2300's, we call them chronotron fields.
"Be good, and you will be lonesome." -- Mark Twain
Newsgroups: misc.legal.computing