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Re: [Steve Lidie <Stephen.O.Lidie@Lehigh.EDU>] Re: xodometer licensing

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

Not to beat this one to death - just to clarify some inaccuracies and
hopefully a summary....

----- Original Message -----
From: "John Galt" <galt@inconnu.isu.edu>
To: "Jeffry Smith" <smith@missioncriticallinux.com>
Cc: "Sam TH" <sam@uchicago.edu>; <debian-legal@lists.debian.org>
Sent: Monday, February 26, 2001 3:00 PM
Subject: Re: [Steve Lidie <Stephen.O.Lidie@Lehigh.EDU>] Re: xodometer

> On Mon, 26 Feb 2001, Jeffry Smith wrote:
> >John Galt said:
> >> On Sun, 25 Feb 2001, Sam TH wrote:
> >> >This statement of freely available, however, also conflicts with the
> >> >examples given for "freely availableness", such as usenet.  Nothing
> >> >about a usenet posting implies free redistibutability.  In fact,
> >> >Usenet postings are all copyrighted, and unless specific other license
> >> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> >> Case law?  Cite?
> >>
> >
> >Since, according to Copyright Law, all writings are copyrighted unless
explicitly stated otherwise, yes, Usenet postings are copyrighted.
> Said copyright law was made by the Berne Convention, which postdates this
> license.  In fact the previous standard was "PD unless stated" (that's
> actually a stretch, the real law involved was that no rights were reserved
> unless specifically stated, hence the "all rights reserved" language of
> many copyright notices).

The Berne Convention predates everything being discussed here. The Berne
treaty was first signed in the late 1800's. The lack of formalities
principle I believe
has been part of, if not some of the earliest versions, the versions at
least since Stockholm in 1967. So, the "PD unless stated" principle hasn't
been true around most, if not all, of the world for a long time with the
last converter to "copyright by default" AFAIK being the U.S. in 1988.
Further, the "all rights reserved" language was used to gain protection in
other countries part of the Buenos Aires convention without complying with
certain formalities in those countries provided the formalities were
complied with in the originating country - it was to soften the
administrative complexity of the "PD unless stated" rule; "all rights
reserved" language has never been a requirement and was a means to gain
protection in countries without necessarily having to comply with all the
formalities in each country.

As for the original issue of USENET postings (or any other work for that
matter), copyrightable works made after March, 1988 obtained copyright
protection in the U.S. without any formalities (and I believe the rest of
the world - I am not sure if there were in 1988 (or exist between then and
today) any other countries with formalities requirements as a predicate to
copyright protection)*. As for those made before March, 1988, they would
have had copyright protection in all other countries in the world not
requiring formalities where the work was published and would have obtained
U.S. protection by complying with formalities (namely a proper copyright
notice between 1978 and 1988). So just because a work may have been in the
public domain in the U.S. did not necessarily mean it was in the public
domain elsewhere - this point has significance when worldwide distribution
of works on the Internet is considered. Further, even if a work wasn't
afforded copyright protection by failing to comply with formalities (leaving
aside 405(a) of the U.S. Copyright Act), it must be remembered that only
such work failing to comply with formalities is in the public domain; all
other modifications, development, etc. after that time may have (and
probably will have) copyright protection automatically and no contract
alters that principle.

In another post, ex-post facto was discussed. It doesn't apply. AFAIK
ex-post facto applies only to criminal laws and so is irrelevant. The U.S.
Constitution's contracts clause is probably closer on point but it only
applies to the states, not the U.S. government. You will note that neither
of these doctrines are raised in Eldred because they are not applicable.

As you can see this is complex stuff and I have tried to speak here
generally to provide some basic understanding (which I think is important
especially in an international context such as the Internet). Each case
depends on its facts and so for particular questions you should consult a
competent (copyright) lawyer. Do not rely on the above as being true in all

* Copyright registration is still needed in the U.S. for enforcement but
that is a different issue than copyright protection.

> >jeff
> >
> --
> Galt's sci-fi paradox:  Stormtroopers versus Redshirts to the death.
> Who is John Galt?  galt@inconnu.isu.edu, that's who!
> --
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