Re: RES: Where to put Open Transport Tycoon (openttd)
For more observations on the legal basis for finding a derivative work
where no literal copying has taken place, see Palladium Music v.
EatSleepMusic at
http://caselaw.lp.findlaw.com/data2/circs/10th/046061.html . For GPL
purposes, it is significant that Palladium's copyrights were held
"invalid and unenforceable because it has failed to obtain compulsory
or consensual licenses from the copyright owners of the underlying
musical compositions". The compulsory licensing bit applies only to
musical recordings in the US, and has a history all its own; but I
think Palladium would be a strong precedent declaring derivative work
copyrights unenforceable if they were not created under appropriate
license from the copyright holder on the original.
And if you thought the Circular 14 citation was worth much (even if it
were to support Raul's assertions, which I'm not convinced it does),
here's a telling excerpt from Palladium:
(6) We note Palladium's reliance upon Circular 56 in lieu of citation
to the Copyright Act itself. The circulars provided by the Copyright
Office are intended simply to aid the public in understanding
copyright law. See Whelan Associates, Inc. v. Jaslow Dental
Laboratory, Inc., 797 F.2d 1222, 1242 n.38 (3d Cir. 1986) ("Copyright
Office circulars are not technical documents, but are `intended to
present simple explanations of the law,' for lay persons."). While
they certainly may supplement our understanding of what is required
for effective registration, see Xoom, Inc. v. Imageline, Inc., 323
F.3d 279, 284-85 (4th Cir. 2003), they are hardly more binding on
statutory interpretation than a plain reading of the Copyright Act
itself, or the Copyright regulations, codified at 37 C.F.R. 202 et
al. See Whelan, 797 F.2d at 1242 n.38 (refusing to give deference to
a circular).
Cheers,
- Michael
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