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Re: complete clone of the debian website

On 2000-06-02 at 13:55 -0400, Raul Miller wrote:

> On Fri, Jun 02, 2000 at 12:47:31PM -0400, Mike Bilow wrote:
> > I recognize your point, but there is enormous uncertainty whether HTML
> > source is subject to copyright protection at all, as distinct from
> > rendered HTML. The problem is that copyright protects, by definition,
> > an actual expression of an idea. This presupposes at least the
> > possibility of communicating the work to another person.
> Is this the same kind of uncertainty that exists about whether computer
> source is subject to copyright protection at all?

Copyright protects the "essential character" of a "work of authorship."  

In the case of a computer program, the source code is clearly included
within the scope of essential character: because the purpose of a computer
program is to be run on a computer, the source code which is used to
generate the executable program is copyrightable.  There is no doubt or
uncertainty about this, if the source code itself is published.

In the case of a literary work, the typesetting specifications and layout
are not part of the essential character of the work, and are not protected
within the scope of copyright.  The issue of whether page numbers are
subject to copyright has actually been litigated inconclusively.

> What we have here is evidence that a work has been copied.  That the
> evidence itself might or might not be copyrightable doesn't mean that
> it's not evidence.

No one disputes that much of the Debian web site has been copied.  If
Debian had a copyright notice such as "All rights reserved," then this
would be an open-and-shut case of copyright infringement.  The problem is
that Debian, for whatever reason, has chosen to license the copyright on
its web site subject to the OPL.

The relevant question then is: Has API violated the OPL license terms and,
if so, to what extent?  API is not using any of the exact words from the
Debian web site in the rendered text.  At most, API has used some of the
exact words from the Debian web site in the unrendered text, such as the
META tags.  Is any unrendered text part of the essential character of a
web site?  That is far from clear.

The real problem is that API has appropriated the artistic content of the
Debian web site.  The focus of the OPL is on the literary content of the
work of authorship, in the sense that the work is a book.  It is not clear
that, under the license terms of the OPL, Debian can raise a meaningful
objection to what API has done.  This was clearly not what was intended by
Debian in choosing to license its web site content under the OPL, nor does
it seem likely that this was what was intended by the author of the OPL.  
Nevertheless, relying upon the actual wording of the OPL itself, I am not
sure that what API has done is a violation of the copyright license.

-- Mike

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