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Re: Implied vs. explicit copyright

Andrew Suffield wrote:
> On Tue, Jul 22, 2003 at 10:38:10AM +0200, Arnoud Galactus Engelfriet wrote:
> > That says that you MAY include a coypright notice as defined in
> > section 401(b). If you choose to do so, then it MUST be
> <snip>
> You're doing it too. I see no "MUST" anywhere in section 401. Please
> constrain yourself to things which are actually part of the law.

True. It says "SHALL". USC 17 s401(b):

  If a notice appears on the copies, it shall consist of the 
  following three elements: 

I believe that SHALL and MUST are equivalent in meaning in English.
But technically you're right, it doesn't say "must".

> > Now, it could be that there is some US precedent that provides
> > other reasons why a defendant's claim of innocent infringement
> > is to be given no weight. But the statute only talks about
> > 'c-in-a-circle', "Copyright" or "Copr.".
> However, there is no statement that forming the notice by using the
> sequence "(c)" is invalid or would not be counted as equivalent.

If a notice appears on the copies, it shall consist of the following three
(1) the symbol  (the letter C in a circle), or the word ''Copyright'', or
the abbreviation ''Copr.''; and 
(2) ...; and
(3) ...

If the law says something shall consist of certain things, then
there is no reason to assume that something else may also
qualify. Only the notice as given in this section allows you
to get the effect of 401(d). 

If the law says "If X, then Y" and nowhere else it mentions 
"If Z, then Y", then it is reasonable to assume Z does not
lead to Y. You seem to be arguing that a court could make up
a rule of its own regarding Z=>Y. True, I suppose. That's what
you get for living in a common law country. But the statute
only says X=>Y, and so based from the statute I can only
conclude that things other than X do not lead to Y.

> Again, I am not claiming that it has equivalent status in law.
> Rather, I am saying that the statement "Using (c) instead of circle-C
> or 'Copyright' renders your notice invalid" has no basis in law
> either.

17 USC 401(d) is the only thing in US law that provides for any
effect if you include a copyright notice. This subsection (d)
clearly states that this effect will happen "[i]f a notice of 
copyright in the form and position specified by this section 
appears on the published copy or copies to which a defendant 
in a copyright infringement suit had access".

Subsection (b) spells out how the notice "shall" appear. If
the c-in-a-circle is missing, then the notice does not
conform to subsection (b) and hence the effect of 401(d)
does not occur. 

> [Which is why I asked for precedent in the first place - I checked the
> US code, the Berne convention, and the UCC, and found no evidence to
> support this position. I had expected there to be some backing to the
> statement, but it appears it is merely enthusiastic speculation.]

It seems perfectly clear to me. The law says "If you include
a notice in the form 'X, Y, Z', then we're going to ignore
the defendant's claim he didn't know about your copyright".
The law does not say "Oh but if you omit X or type something
that vaguely looks like it, that's ok".

Now, I wouldn't be surprised if there was case law in the US
that provided other rules about when the court should ignore
the defendant's claim he didn't know about your copyright. 
But that's not a basis in the statute.


Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

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