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Re: complete clone of the debian website

See comments interspersed below. Talking about U.S. law here - your mileage may vary in other countries.

This is not legal advice, no attorney-client relationship established, etc etc

From: Mike Bilow <mikebw@colossus.bilow.com>
To: Raul Miller <moth@debian.org>
CC: debian-legal@lists.debian.org
Subject: Re: complete clone of the debian website
Date: Fri, 2 Jun 2000 14:33:31 -0400 (EDT)

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."

Not sure what legal principle you are referring to here. If you have a cite, it would be much appreciated. My understanding of the basics of the U.S. infringement/protection analysis is whether copyright inheres (originality, de minimis, etc. assuming that the relevant work fits into a copyrightable category), whether there has been copying, and whether there is identity or substantial similarity between the work and alleged infringing work.

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.

The source code does not need to be "published" in order for copyright protection to inhere. Whether copyright protection inheres in source code (assuming that it fits into one of the copyrightable works categories which it explicitly does in the literary work category in the U.S.) is whether it meets the basic originality and de minimis tests; I think no U.S. court would follow your analysis of determining whether copyright protection exits for a work of source code.

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

I am not sure if it's so cut and dry. The question really is whether there is originality. I could see cases where there is very unique typography and layout that could be considered copyrightable.

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

"All rights reserved" is not necessary. This is just a legacy from the past which I believe is no longer required - you had to use that language in order to get certain protections in some Latin America countries but no longer. All rights are reserved automatically in the absence of a license (whether express or implied).

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.

Assuming that the Debian home page HTML source is copyrightable (which I think it is - see discussion above), the question I think here turns on whether there has been copying (need to prove they had the source or access to the source) and then whether substantial similarity between the two exists as a whole. I don't think most would deny that if you put the Debian source next to the other source that they are virtually identical or at least substantially similar, even if you ignored the fact that the text was changed and that certain aspects of the code are dictated by standards/external factors or are conventional. No taking of the essential character analysis applicable.

Of course, things get more complicated with a license.

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.

If Debian was not licensing the HTML source with the OPL then what was it purportedly licensing? If the HTML source is the object of the license, then it appears API, without more information and given the striking similarity, has not complied with the terms of the license. I can't believe as correct that the HTML source is not a copyrightable work and so Debian was not licensing anything with the OPL.
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