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Re: Implied vs. explicit copyright



On Mon, Jul 21, 2003 at 05:42:20PM -0700, Thomas Bushnell, BSG wrote:
> Andrew Suffield <asuffield@debian.org> writes:
> 
> > So in brief, there is no basis in law for the statement that "(c) is
> > not valid as a notice of copyright".
> 
> Sure there is.  The law says that the following are the only valid
> things:
> 
> C in a circle
> The word "Copyright".
> The abbreviation "Copr."
> 
> The law says that making mistakes in this area means there is not an
> erroneous notice, but no notice at all.

This is a plausible argument. You should know by now that plausible
arguments do not form a basis in law; rather, it is merely the
position put forth by the counsel for the defence. Kindly refrain from
treating it as anything else.

In my country we have courts to make decisions where the legislature
has failed to completely specify or consider a particular
case. Although since you appear to be in the US, I admit that I don't
know what your courts are supposed to be for.

> > If your lawyer can't make a convincing argument in court that "(c)" is
> > an acceptable alternative to the specified symbol, in a medium which
> > cannot represent the official symbol, then find yourself a better
> > lawyer.
> 
> Except that the medium does permit the symbol "Copyright", so that's
> no good.
> 
> The effect of a notice is to increase damages for infringement and
> eliminate one kind of defense.  The question is not "did you know it
> was copyrighted", for which anything that communicates intent would be
> good enough.  The question is much more rigid, it's "was there a valid
> notice".  
> 
> If the notice is erroneous, then it counts as a valid notice provided
> it still communicates intent.
> 
> But if the notice is omitted, then it doesn't communicate intent.  And
> the law is explicit that if it lacks all three of c-in-a-circle,
> "Copyright", and "Copr.", then it is not merely erroneous, but
> omitted.  (Similarly, the date must be correct within one year or the
> notice is omitted [not just erroneous]; there is a list of such
> things, for which any mistake means there is no notice, not just an
> erroneous one.)
> 
> At best you can argue that (c) communicates intent: communicates the
> information "this is coprighted".  But communicating that information
> just isn't relevant to getting treble damages or defeating an
> ignorance defense.  
> 
> So the law says, in no uncertain terms, that "Copywrite" (misspelled)
> is not a valid notice, period.  Similarly, it gives no indication that
> "(c)" means anything at all, and it says explicitly that the copyright
> ID is a special magic token, any variation of which renders the notice
> officially nonexistent.

All of this is more from the counsel for the defence. It is your
interpretation of the law; it is not the law itself.

The law, as formulated in the US, says this:

 - "Copyright" forms an acceptable notice
 - circle-C forms an acceptable notice
(plus the year and name)

It does not say this:

 - No alternate representations form an acceptable notice

If it did, then you would not be able to post a notice of copyright in
a medium which could reliably represent neither of these. Say, for
example, a gzipped tarball - which stores neither, but instead can
store a sequence of bytes representing one or the other.

This could even be extended to an argument that since digital data is
merely a representation of the stated acceptable forms, it does not in
itself constitute a valid notice - so you can only make an acceptable
notice on paper. I see nothing in the US copyright law which
contradicts this, and it is consistant with many related precedents in
many jurisdictions (copyright assignment must be made on paper, not
via email).

I do not think that a UK court would uphold either of these positions
(I make no comment as to what a US court would do, since they
frequently make decisions with no apparent basis in reality).

I think that it is not implausible for any court to decide that "(c)"
is an acceptable alternate representation of the circle-C sign in an
ASCII text stream. Note that the circle-C sign is unreproducible in a
C source file - it can only be represented.

I stipulate, again, that there is no legislated decision one way or
the other. And I am aware of no precedent in this matter.

-- 
  .''`.  ** Debian GNU/Linux ** | Andrew Suffield
 : :' :  http://www.debian.org/ |
 `. `'                          |
   `-             -><-          |

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