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Re: complete clone of the debian website

On 2000-06-02 at 11:08 +0200, Peter Makholm wrote:

> Mike Bilow <mikebw@colossus.bilow.com> writes:
> > artistic character.  It is also not clear to me whether the API web site,
> > with entirely new text, is a derivation from or an aggregation with the
> Have you seen the source from the API-website?
> That haven't even changed the meta-tags, from the debian website. It
> is clearlky, to me, that they have copied the html and chenged the
> text. 

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.  For example, if there were charts
and diagrams on the Debian web site which were used to support the text,
say a flow chart showing how to obtain the Debian distribution, then this
would be definitely protected under the OPL just as the words would be.

However, the artistic character of the web site, its "look and feel," are
essentially arbitrary.  (In fact, if this were not the case, such artistic
character could not serve as a component of a trademark.)  One could draw
the navigation bar and the letters and so forth in a hundred different
ways, and they would all work as well in terms of communicating the basic
message of the web site.  It is by no means clear that the OPL protects
the ancillary or incidental components of a copyrighted work, such as
the layout, color scheme, or display typography.

The situation is somewhat similar to that faced by bad novels.  I know
this may seem counter-intuitive at first, but it is much easier to make an
infringement claim in support of a great or famous novel than in support
of a bad one, because bad novels tend inevitably to be fairly similar.  
What are known as "romance novels" in the US, for example, are consciously
based upon entirely formulaic characters, plot, title, length, and cover
art.  One can be reduced in court to arguing such things as, "Yes, it is
true that in both works at issue the heroine is named 'Susan,' was
disappointed in love, and was finally reunited with the man of her dreams,
but in one she is working as a waitress waiting to be swept off her feet
and in the other she is working as a secretary waiting to be swept off her
feet."  I realize that I am being perhaps overly sarcastic here, but the
problem is very real and it is hard, short of producing actual passages of
words quoted verbatim, to show an infringement of a bad novel.

Whatever one may think of the ethics of the API web site using literal
HTML source from the Debian web site without attribution, there is little
or nothing of the words and substance of the Debian site (other than the
"swirl" graphic, which is important in a trademark context).  Copyright
infringement in this situation must consist entirely in the ancillary and
incidental aspects of the Debian web site: layout, color scheme, display
typography, and so on.  Further, it is doubtful that invisible (that is,
unrendered) parts of the HTML source, such as META tags, could be
protected by copyright at all.

So the copyright question must be considered in light of the nature of the
works concerned.  It is not unreasonable to claim that the API site is
essentially an aggregation of Debian's layout, color scheme, display
typography, and "look and feel" with API's words and substance.  If the
words and substance of the Debian web site were reused, then certainly
the API site would be a derivation and not an aggregation.  This means
that it is not clear to me that the credit requirements of the OPL come
into play here, since the OPL is applicable to derivation.

This is also why I suggested in my earlier message that a trademark claim
is a stronger argument in this situation, if the goal is to prevent
someone from putting up a web site that looks just like Debian's but is
not, in fact, Debian's.  Ordinarily, this would be an open-and-shut
copyright infringement issue, but the construction of the OPL complicates
that very severely.  To put it more simply, I am not sure that what API
did is actually a violation of the copyright license (the OPL) which
Debian has chosen to grant.  This may really be an indication of a defect
in the OPL -- the "we didn't think of that" problem -- but it is real.

-- Mike

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