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Re: Is license text copyrightable? [was: Re: Is OSL 2.0 compliant with DFSG?]

Don Armstrong wrote:

> On Mon, 12 Apr 2004, Nathanael Nerode wrote:
>> Francesco Poli wrote:
>> > This brings up the question (once again): is a legal text, such as a
>> > copyright license, copyrightable? In which jurisdictions?
>> Not in the US.  No idea about other countries.
> About once a month I seem to be running into this statement, which is
> pretty much wrong. I dealt with it most recently in February.[1]
> You need to read Veeck v. SBCCI and see the distinction between law
> and legal text. In that decision,[2] they specifically state that the
> model codes themselves (a purely legal document) are
> copyrightable. However, the version of the codes incorporated into law
> is not.
Thank you for the clarification.... but it doesn't really help.

Perhaps you could explain the status of license and contract texts, since
the case quoted below is of no help whatsoever. These are not, as far as I
can tell, "the law" -- they are not laws or regulations -- and they are
routinely copyrighted.  However, the courts apparently never uphold claims
of infrignement based on the use of essentially-identical (boilerplate)
legal text in other contracts or licenses.  (I think there was a case where
the supplier of fill-in-the-blank forms sued for copyright infrignment and
lost, but I can't look it up right now.)

What legal principles and argument are being used here?  I can think of
several possible bases for this conclusion off the top of my head (legal
sentences are ideas inextricably tied up with exact wording, so reuse of
the wording can't be restricted without restricting the uncopyrightable
idea; contracts and licenses are in some sense private parts of "the law";
a legal text is not a creative literary work; a legal text consists only of
facts; prohibiting reuse of legal verbiage encourages everyone to use
different wording, causing trouble for the courts and therefore being
against public policy; etc.), but I have no idea which one(s) are actually
used in the case law.

>      As the organizational author of original works, SBCCI
>      indisputably holds a copyright in its model building codes. See
>      17 U.S.C. § 102(a). Copyright law permits an author exclusively
>      to make or condone derivative works and to regulate the copying
>      and distribution of both the original and derivative works. 17
>      U.S.C. § 106. The question before us is whether Peter Veeck
>      infringed SBCCI's copyright on its model codes when he posted
>      them only as what they became -- building codes of Anna and
>      Savoy, Texas -- on his regional website. Put otherwise, does
>      SBCCI retain the right wholly to exclude others from copying the
>      model codes after and only to the extent to which they are
>      adopted as "the law" of various jurisdictions?
>      The answer to this narrow issue seems compelled by three sources:
>      the Supreme Court's holding that "the law" is not copyrightable;
>      alternatively, the Copyright Act's exclusion from its scope of
>      "ideas" or "facts"; and the balance of caselaw.
> Don Armstrong
> 1:
> http://people.debian.org/~terpstra/message/20040228.225236.bafd4ac1.html
> 2: http://www.ca5.uscourts.gov/opinions/pub/99/99-40632-cv2.htm

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