Re: RES: What makes software copyrightable anyway?
On 5/18/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> Yeah, I already corrected you on that one. I very much doubt that
> you've even read the decision, and you certainly have made no attempt
> to substantiate your claim about the reasoning it contains. I don't
> know why I even bother at this point -- I doubt that there's a single
> debian-legal reader who both is permeable to reasoning and believes
> that your statements are founded in fact and law. If that reader
> exists, now would be a good time to speak up.
Hmm, that's somewhat harsher than I intended. It would be fairer to
say that you have made quite a few statements that are poorly, if at
all, supported by the available fact and law; and when challenged on
their factual and legal basis, your responses are not very convincing.
In particular, your belief in the existence of cases that "apply some
legal theory other than contract in order to analyze the scope and
effect of a license" does not appear to be founded in fact or law. I
suspect that most debian-legal readers agree with that particular
assessment, and that those who do not are on the impermeable end of
the spectrum.
Sorry to have overreacted again, but this is getting ludicrous.
Honestly now, have you read Heritiers Huston c. Societe Turner et al.?
You might find the decision of the Versailles appeals court,
subsequent to the Cour de Cassation proceeding, enlightening. It's at
http://www.droit-auteur.com/jurisprudence_general_divers4-1.htm , and
the part relevant to the current discussion is (my translation):
<translation>
But considering that "colorisation" is a technique based on the use of
a computer and a laser, and that it permits (after the transfer of the
original black-and-white film onto a videotape medium) the application
of colors to a film that originally lacked them; that the result of
such a process is in no way comparable to an "adaptation", which is
defined "as an original work of both expression and composition" even
though it borrows formal elements from a pre-existing work; and that,
far from fitting these criteria, "colorisation" consists in effect of
nothing but modifying a work by adding an element entirely foreign to
the creator's aesthetic conception;
And considering that in this instance, the original court has stated
precisely that the the aesthetic conception which gave John Huston his
great fame is founded on the interplay of black and white which
allowed him to create the atmosphere in the context of which he
directed actors and chose settings; that in any case he stated this
clearly, in connection with his film "The Maltese Falcon", saying "I
have crafted it in black and white, as a sculptor chooses to fashion
clay, to cast his work in bronze, to sculpt marble."
And given that in 1950 the technique of filming in color was already
widespread and that another option was available, it is manifestly in
pursuit of a deliberate aesthetic choice that the film "Asphalt
Jungle" was crafted in black and white according to the process that
its authors felt was most appropriate to the character of the work;
</translation>
So the Turner Corporation was deliberately flouting the director's
famous aesthetic preference for black-and-white film, which was
unarguably a deliberate choice with regard to "Asphalt Jungle", in
order to appeal commercially to a certain audience. That seems to be
what it takes to prove an offense against droits morals de l'auteur.
Comments from real francophones and/or lawyers in droit d'auteur
jurisdictions?
Cheers,
- Michael
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