From: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Newsgroups: misc.legal.computing,misc.legal
Subject: Re: Out of print material and copyright law
Date: 9 Jan 93 01:17:25 GMT
Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll)
Organization: Amdahl Corporation

In article <1ikgsaINNnbu@shelley.u.washington.edu>, 
medic@hardy.u.washington.edu (Travis Lauricella) writes:

> On Fri, 8 Jan 1993, Terry Carroll wrote:
> 
> > medic@hardy.u.washington.edu (Travis Lauricella) writes:
 
> > It's probably also worth remembering that the origin of fair use was to 
> > permit criticism and comment, not to make wholesale copies.
> 
> Was it?  I thought it also pertained to short term educational use, such
> as a teacher copying an article from a newspaper for his/her students.  I
> don't remember it speaking of criticism and comment exclusively, although
> I could be mistaken.  Either way, I do see that this wouldn't pertain to
> copying CW for personal use.

We're both right.  The _origin_ of the doctrine is to allow criticism and 
comment.  I think (a _very_ hazy memory on this, so don't quote me) that the 
first "fair use" case was a quotation from one of General Washington's 
letters, and his estate sued.  But the doctrine has grown, and also 
recognizes educational use.
 
> I don't remember, but is fair use an "all of the above" law (meaning
> that all three points must be considered) or is it a "one of the above"
> law (like the definition of non-obscenity, which states that if one of the
> three opints is met, the work is not obscene).

A court must weigh all four factors, then take a crap shot based on the 
balancing of all four.  It's neither "must meet all four" nor "must meet any 
one of the four".
 
BTW, it's four factors, not three.  Paraphrasing from memory:

1) The purpose and character of the use (commercial, non-profit educational, 
or something in between?);
2) The nature of the copyrighted work (factual, or entertainment?);
3) The amount (sort of a percentage) taken from the copyrighted work;
4) The effect on the potential market or value of the copyrighted work.

> > > In a nutshell, is it illegal to copy software which is out of print?
> > 
> > Almost certainly.  By copying it, you're devaluing the derivative works
> > right 
> > considerably.
> 
> I have to disagree with you on this point.  If you change to "..., you're
> _often_ devaluing the derivative works right...", then I can agree. 

I think we'll disgree; probably some middle road is truth. :-)

> That's why I made the distinction between CW (an old, old game on a
> defunct computer system which has had much better "derivative works," such
> as Wolf 3d, designed for working computers) and Windows 3.0 (a work which,
> although now outdated, if made free would have substantial impact on the
> market for Windows 3.1).  I don't see that free copying of CW (or just
> about any Apple //e (or Commodore Vic 20, or TI99/4A) software would have
> any real effect on the market.

Well, is the code in CW _so_ bad that the copyright owner would _never_ use 
it in another game of the same genre?

>  Because I don't see that any market exists
> for it. 


We're not talking about the market for CW, we're talking about the market, 
actual or potential, of any work that may _derive_ from the protected 
expression in CW (e.g., code in CW that might be re-used in a later game).  
The effect on the derivative work's market, actual or potential, indirectly 
impacts the value of the derivative works right, and hence the value of CW's 
copyright.

BTW, we're using "derivative work" in two different ways, I think.  I'm using 
it as a term of art of copyright law, a point I probably should have made 
clear.  You seem to be, quite logically, using it to describe works that 
competing and similar, but which are not directly derived from the protected 
expression in the copyrighted work.

If I write game X, and you think it's cool, and write your own game Y, your 
game Y is not a "derivative work" in a copyright sense.  Although your game 
clearly "derives from" mine, in an everyday sense of the word, it doesn't 
derive from the protected expression in game X, so it's not a derivative 
work.  If I (or for that matter, you) write game Z, which incorporates 
material from game X, then game Z _is_ a derivative work derived from game Y.

> How is the author
> determined when the work is from a company?  50 years after the
> dissolusion (sp) of the company?  But if the company no longer exists,
> there is no one to check with to get permission to copy, nor is there any
> chance to have derivative copies made.

Such simple questions, such complex answers!  Let me try an abbreviated 
answer (shoot, I'm writing a FAQ for misc.legal, and these are two of the 
entries -- only problem is, the FAQ is on my home computer)

1) The author is the person who wrote the work, unless the work is a "work 
made for hire", in which case the author is the company who "hired" the 
making of the work. (17 USC 201)

2) In the case of a work made for hire, the duration of copyright is 75 
years. (17 USC 302)

3) A work is a work for made for hire if it is created by an employee in the 
normal course of the employee's duties (17 USC 101).  Note that this does 
_not_ include private contracters.  If I'm a rent-a-programmer, I own the 
copyright in the works I create.

4) A work may also be a work made for hire if it is specially commisioned, 
parties agree in writing that it is a work made for hire _and_ it is one of a 
list of relatively esoteric types of work (17 USC 101).  Works like atlases, 
tests, answer material for tests, etc. come to mind.  This is considered a 
relatively unimportant definition; because of the esoteric nature of the 
works, most works (like programs, news stories, etc.) don't fall into it.  I 
imagine for certain companies who specialize in such works (e.g., Rand-
McNally), it's rather important.

5) Notwithstanding the private contracter's work not falling into the work 
made for hire doctrine, while the work is not one made for hire, and 
therefore copyright initially vests in the human author, it is possible to 
contract that as partof the consideration for which the private contractor is 
working, he agrees to _assign_ those copyrights to the hiring party.

6) If that's true, then what's the difference between #3 and #5?  Doesn't 
that run around the provisions discussed in #4?  No.  There are two important 
distinctions.  First, in #5, the duration of copyright is based on the 
author's lifetime, rather than the 75-year work made for hire duration.  
Second, the author and his descendants retain a limited "right of 
termination" whereby they are permitted, after a certain number of years have 
passed, to "take back" the copyright.  I think that's possible after 35 years 
or so.  Sorry to be foggy, but I don't have a copy of the copyright statute 
handy.  That's discussed in 17 USC 203 (give or take a section).

7) As to status of a copyright for a work made for hire (or any copyright 
owned by a corporation, whether the copyright initially vested as a work made 
for hire, or was acquired through an assignment):  A copyright, like any 
other asset, is just another asset on the company's books.  There are even 
standard accounting practices for handling its amortization.  When a company 
dissolves, its assets are sold just as any other assets are.  If the 
copyright isn't specificly purchased, it will pass to whoever buys the 
"residue" of the company.

Did I tell you far more than you ever wanted to know?  :-)





  I would guess, also, that there
> would be no one left to be sued by, either, though, so perhaps this
> question is pointless.
> 
> -- 
> 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

Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152
The opinions presented above are not necessarily those of a sound mind.
Newsgroups: misc.legal.computing