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Re: Implied vs. explicit copyright


Andrew Suffield wrote:
> On Wed, Jul 23, 2003 at 06:11:08PM +0200, Arnoud Galactus Engelfriet wrote:
> >   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".
> They are generally interpreted as having different implications;
> "must" is a far stronger term.

This is probably due to my lack of skill in English. My dictionary
says they're synonyms. Anyway, a minor point.

> > If a notice appears on the copies, it shall consist of the following three
> > elements: 
> > (1) the symbol  (the letter C in a circle), or the word ''Copyright'', or
> Whoops, did it again. It doesn't say \236, whatever that is (doesn't
> look much like a circle-C in UTF-8; doesn't render _at all_ in
> ASCII). It has a graphic. It doesn't place any constraints on how
> accurately this graphic has to be reproduced.

Correct. I am unable to reproduce the c-in-a-circle symbol
in a standard ASCII message. Still, you know which symbol
we're talking about.

> > 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). 
> Here's a reason:
> "(c)" is the closest you can get to circle-C in one-dimensional ASCII
> text. It's a pretty close reproduction of the symbol.

This is an argument that says a court ought to interpret "(c)"
as the c-in-a-circle symbol required by 401(b). It does not
say that "(c)" should be regarded as an equivalent (that is, 
as something else that produces the same thing). Now I am
confused; are you arguing that "(c)" should be seen as a
badly drawn c-in-a-circle symbol, or as a different symbol
that courts should treat as if it were a c-in-a-circle?

> > 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.
> It is indeed the role of the courts to interpret the law according to
> its intent, rather than its literal wording. If the law were
> interpreted according to its literal wording, then we would not need
> the judicial system; we could leave the job to a computer.

There is a big difference between a court saying "Oh, '(c)'
is the closest you can get in ASCII to a c-in-a-circle, so
I'm gonna rule it *is* a c-in-a-circle" and a court saying
"Well, the statute does not say anything about this '(c)'
thing, but I'm going to rule that if you put '(c)' on
a work, you get the effect of 17 USC 401(d) even though
you didn't meet 401(b)". 

Perhaps this is a result of my civil law background and
your common law background. The first position, interpreting
(stretching) rules and matching them to situations, is typical
for civil law. Making up rules by analogy is typical for
common law. The net result is usually the same.


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

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