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Re: RES: Where to put Open Transport Tycoon (openttd)

On 5/19/05, Raul Miller <moth.debian@gmail.com> wrote:
> On 5/19/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > Still working on your proof by repeated assertion, are you?
> > Collective works are not derivative works under copyright law, as I,
> > Humberto, and Batist have proven to our own and each other's
> > satisfaction, and the apparent satisfaction of all other active
> > participants in this discussion, under the Berne Convention and under
> > three otherwise widely divergent national implementations.  The fact
> > that you cannot distinguish between a set containing the element X and
> > a set containing a collective work that incorporates X is not my
> > problem.
> You've failed to offer any authority for your assertion that
> derivative and collective works are disjoint.

BS.  I've given you treaty, statute, case law, Nimmer, the works.

> I agree that you have cited plenty of authority which shows
> that they are different.

If a work is formed by one of the processes listed in 17 USC 101 under
"compilations" / "collective works", it's a collective work.  If it's
formed by one of the processes listed under "derivative works", it's a
derivative work.  Those sets of processes are non-overlapping.

In the real world, works of an arbitrary degree of similarity may be
produced by either set of processes given different inputs.  Hence it
can be a bit of a judgment call which process came last, when you come
to certain borderline cases such as translated anthologies.  But the
difference is clear enough in principle to justify the stronger word
"disjoint" for all legal purposes, and especially for the purpose of
determining that the largest "derivative work" of Quagga in
Quagga+Net-SNMP+libssl is Quagga itself.  End of argument.

(How did this debate spill over into this thread, anyway?)

> I've presented examples -- which you have apparently
> agreed are legally valid -- where the same work is both
> a collective work and a derivative work.  You've asserted
> that these are not valid examples of this concept, but
> your "logic" escapes me.

What examples would those be?  If you are talking about the 2005
Brittanica or the even-more-borderline example that I provided (a
translation of an encyclopedia / an encyclopedia of translations), I
have both drawn the borderline for you and explained why it is
unimportant to reaching the correct legal conclusion given several
possible sets of facts about licenses granted.  The only circumstance
under which it matters is when you write "derivative work under
copyright law" into the text of an offer of contract, and I believe
I've pummeled that quagga to the necessary extent.

> > > I've not yet read the case summary to determine see what
> > > it says about the literal copying issue.
> >
> > You should not have any difficulty in establishing the correctness of
> > "no literal copying has taken place" with regard to the Palladium
> > opinion by applying your eyeballs to it for ninety seconds or so,
> > especially if you use a browser that can find the words "preexisting
> > sounds" in its text.
> It's the relevance I'm having problems with.
> Palladium created literal copies of some music, without a license.
> The court declared that these copies were derivatives of the original
> and that Palladium did not have a license for them.

No.  Palladium "reverse engineered" the sheet music for the
accompaniment to thousands of pop songs and recorded them, without
literal copying of the original recordings (i. e. the use of
"preexisting sounds"), as karaoke backing music.  When another karaoke
publisher ripped off a bunch of those tracks and Palladium filed suit,
they lost because they didn't have a valid copyright, for lack of
license from the original copyright holders.

This is relevant to OpenTTD, for instance, because its authors don't
(AFAIK) have a license from the copyright holder on Transport Tycoon
Deluxe to create a sequel/adaptation/whatever, and so they don't have
a valid copyright on OpenTTD, so they can't license it to you and me
under the GPL (or any other license that has any basis in copyright).

> In the context of openttd, this would be analogous to creating
> fresh copies of the game data which basically looked like and
> acted like the original game.
> But we're not talking about the game data, we're talking about
> the game engine.

We're talking about a theory of derivative work that doesn't require
literal copying.  In the game context, that would be closer to "mise
en scene" than to "public performance" / "unauthorized recording", so
the process of establishing the fact of copying is a bit different. 
But with regard to freeciv (and the hypothesized
OpenTTD-that-doesn't-need-bits-of-the-original), I think it
vanishingly unlikely (IANAL) that the copyright holder on the original
would fail to establish facts in support of infringement.

> The game engine is to the game what a musical instrument
> is to music.  You use a musical instrument to play music
> in much the same way you use a game engine to play the
> game.

Horsepucky.  It's not a generic game engine, it's a clone of a
specific game.  If you make a "musical instrument" that can only be
used to play "Happy Birthday (To You)", guess what?  You need license
from its copyright holder.

> There might be some uniquely creative elements to some
> musical instrument, which are copyrightable.  Likewise,
> there might be some uniquely creative elements in the game
> engine which are copyrightable.  We just haven't identified
> any, yet.

The "creativity" / "originality" threshold for copyrightability is
quite low.  I don't think the copyright holder on a complex simulation
game such as Civilization or Transport Tycoon would have any
difficulty establishing that copyrightable elements have been copied
into admitted clones of their game engines.

- Michael

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