Re: RES: Where to put Open Transport Tycoon (openttd)
On 5/19/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> > 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.
You've adequately proven that derivative works and collective
works are different.
You've yet to provide a citation which shows that they are disjoint.
> > 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.
Both kinds of processes can be accurate in describing the
creation of a particular work.
> 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.
You've also not cited any credible authority which claims that
the "process which came last" is the only relevant issue.
> (How did this debate spill over into this thread, anyway?)
You brought up the copyright office circulars, so I mentioned
why I had originally proposed them.
> > 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.
That's one of the examples.
In any event, I'm still not seeing any reason to believe that
derivative works are disjoint from collective works.
If showing that the issue is irrelevant shows that there's no
legally valid reason to think they need to be disjoint.
> > 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.
To avoid further arguments here, let's go with what the court said:
Palladium hires musicians and technicians to record
music made popular by other artists. The recordings it
produces sound similar to
the original artist and are produced "in the style" of that
artist. Palladium does
not, however, incorporate any previously recorded sound
components in its
production and it does not attempt to change in any way the
original musical
compositions it uses. The final product is an original sound
recording of a
previously copyrighted musical composition.
> 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.
No disagreement here.
> 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).
I disagree -- the game's composition is in the game data. They don't
have a copyright on the game data.
I suppose it's also true that they don't have a copyright on the
functionality represented by this game, but functionality wasn't
copyrightable in the first place.
> > 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.
And all you have to do is identify the creative elements in question
and I'd likely agree with you.
All I'm saying is that we've not as yet identified any.
> > 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.
A game engine is to a game what a programming language is
to a program.
If you have some evidence that no other compositions are possible
with this game engine, please present it.
> > 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.
Ok, so you're saying you could rather easily find some of these
creative elements.
Have fun,
--
Raul
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