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Re: Bug#310994: ITP: openttd -- open source clone of the Microprose game "Transport Tycoon Deluxe"

On 5/31/05, Nathanael Nerode <neroden@twcny.rr.com> wrote:
[more stuff where we agree]
> > Basically harmless, if TTD is abandonware;
> Consider that it has an official "successor" by the same author.  Oh, but
> copyright a different company.  Do you think maybe he plagarized himself?
> (Just to throw confusion into the mix....)

That can happen.  Check out Mitek v. ArcE.  In this instance, the
district court found the facts to be against the claim of
infringement, and the appeals court affirmed; but it is quite possible
for an author to plagiarize his own previous work.  Style, however, is
inalienable, even in a one-man genre -- see Fantasy, Inc. v. Fogerty,
984 F.2d 1524 (9th Cir. 1993).  The "successor" was probably
reimplemented from the ground up using Chris Sawyer's ideas, methods
of operation, and style but new code and artwork.

> The problem of being effectively unable to legally reproduce or make
> derivative works from out-of-print copyrighted published material is
> beginning to come to a head for other reasons.  This is a case where the
> current statute law is not on the side of sanity or freedom -- but due to
> the nature of the situation, people almost never get sued -- and something
> will have to give, eventually.  Well, who knows what will happen; it's not
> immediately relevant.

This is not a new problem.  Ever sung in a community choir with a
classical bent?  A large fraction of the repertoire is out of print,
and if you want to sing them you have to harass publishers for
permission to photocopy, borrow copies from a choir in a neighboring
town, or (for older works) find a copyright-expired or free-as-in-beer
arrangement (generally poorly edited) and correct it yourself.  That's
life on the fringe of the commercially viable, and it wasn't much
different a century ago, except that hand-copying was more work.

In the pop music industry, they have a (partial) solution to this
problem called "compulsory mechanical license", which is in 17 USC
115.  That's very much a publisher's game, though; the paperwork
requirement is way too high for a community-scale performance.  So if
you try all the official routes and can't get legal copies, then maybe
once in a while you cross your fingers and Xerox your personal copy,
trusting to "fair use".  But if that gets to be a habit you can wind
up in deep doo-doo -- especially if your diligence with respect to the
official routes lapses, or you start picking music because it's in
that gray area.

Some people try to justify wholesale rip-offs of recorded-music
publishers using a specious "out-of-print works are hard to get
legally" reductio ad absurdum.  I'm not saying you (Nathanael) are
justifying this, nor am I particularly hostile to
home-recording-quality concert bootlegs, small-run community choir CDs
sent to friends and relatives, or a compilation CD for a 15-year-old's
friend's birthday.  But personally, I draw the line at ripping one or
two tracks off a CD and then reselling it used; and I am not a rich

I look around and see people not buying pre-recorded CDs at all, or
buying one and passing the ripped bits to nineteen acquaintances, and
that kinda pisses me off.  Why do you think self-publishers and indie
record labels struggle?  Do you think Tom Lehrer would ever have
played Carnegie Hall if his cult following could have passed ripped
bits around instead of sending three bucks to his P. O. Box?  Would I
ever have run across the gems in Gilmour's Albums if there were no
market for commercial re-publication of lovingly selected tracks from
old records?

Which is more important: protecting the consumer from the risk that
something might go out of print, or improving the likelihood that it
might get created in the first place?  And which is nicer to have -- a
Xerox copy of the children's book you and your brother both loved
best, or a reissued edition with non-toxic colors that your daughter
can chew on between readings?  (If some reader is feeling generous, he
or she can send me an eight-dollar copy of "Epaminondas and His
Auntie" for my daughter and a 1912 edition of "Best Stories to Tell to
Children" for myself.  I promise to handle the race issues
sensitively, just like my Dad did.)

Now that print-on-demand is almost price-competitive with conventional
printing (for instance, check out Beard Books for classic works by
Thurman Arnold), maybe we could use a compulsory license system for
unpretentious paperback editions of books at least 17 years old.  And
maybe Mickey Mouse and James Bond should be allowed to join Sherlock
Holmes and Santa Claus among the fictional characters available for
recycling by all comers.  Once we've got good legislative compromises
in place for these genuinely contentious issues, I might start caring
about creating a legal status for abandonware video games.

- Michael

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