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

Adam Kessel wrote:

> 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.)

> One case on point is _Donald v. Zack Meyer's TV_, 426 F.2d 1027 (5th Cir.

* That * was the one I was thinking of.  :-)  Thanks.

> 1970). Jessica Litman summarized the case nicely, so I'll just quote
> her[2]:
>    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.

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