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

On Mon, Apr 12, 2004 at 09:15:04PM -0400, Nathanael Nerode wrote:
> 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.)

You're probably thinking of _Baker v. Selden_, 101 U.S. 99 (1879)[0],
where the United States Supreme Court held that a book describing a
system of accounting was protected by copyright, but the forms necessary
to practice that system were not a proper subject of copyright: 

   Now, whilst no one has a right to print or publish his book, or any
   material part thereof, as a book intended to convey instruction in the
   art, any person may practise and use the art itself which he has
   described and illustrated therein. The use of the art is a totally
   different thing from a publication of the book explaining it. The
   copyright of a book on book-keeping cannot secure the exclusive right
   to make, sell, and use account-books prepared upon the plan set forth
   in such book. Whether the art might or might not have been patented,
   is a question which is not before us. It was not patented, and is open
   and free to the use of the public. And, of course, in using the art,
   the ruled lines and headings of accounts must necessarily be used as
   incident to it.  

101 U.S. at 104.

> 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.

I expect the main issue would be the limited number of ways to express a
given idea, and potentially the failure to meet the "creativity"

For example, in _Morrissey v. Procter & Gamble_, 379 F.2d 675 (1st Cir.
1967)[1], the First Circuit held that the rules to a particular contest
were not protected by copyright because the contest could only be
described in a very limited number of ways.   Essentially what you get in
these situations is very "thin" copyright protection.  The defendant
barely paraphrased the plaintiff's contest rules, but did not infringe.  

One case on point is _Donald v. Zack Meyer's TV_, 426 F.2d 1027 (5th Cir.
1970). Jessica Litman summarized the case nicely, so I'll just quote

   Mr. Donald dropped out of law school after a year and went into the
   business of printing business invoices.  He drafted and registered the
   contract language that appeared on the bottom of these invoices, and
   sued Moore's when, at the request of one of Donald's former customers,
   it added Donald's language to the forms it printed. The district court
   ruled that Moore's had infringed Donald's copyright. The 5th Circuit
   reversed, finding Donald's copyrights invalid for want of originality.
   In essence the court concluded that Donald *must* *have* copied the
   language from legal form books available in the law library during the
   year he was in law school. I wouldn't even try to defend the court's
   rationale, but most courts would have reached the same result.

The contractual language in _Donald v. Zack Meyer's TV_ was much closer
to boilerplate language than, e.g., the OSL 2.0 text.  Without having
done much research on the question, I would expect that copyright
protection would be "thicker" for OSL 2.0 than for something like a
standard purchase and sale agreement.  
Adam Kessel

[0] http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=101&invol=99
[1] http://www.law.uconn.edu/homes/swilf/ip/cases/morrissey.htm
[2] http://www.cni.org/Hforums/cni-copyright/1999-03/0783.html

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