Re: License issue on tiny Javascript fragment

[Ben Finney <ben+debian@benfinney.id.au>]

"Joe Smith" <unknown_kev_cat@hotmail.com> writes:

> "Ben Finney" <ben+debian@benfinney.id.au> wrote in message
> [🔎] 874oyuq3ki.fsf@benfinney.id.au">news:[🔎] 874oyuq3ki.fsf@benfinney.id.au...
> "Joe Smith" <unknown_kev_cat@hotmail.com> writes:
> 
> >> This new version is the very definition of a function too trivial
> >> to copyright
> >
> >That's a pretty strong assertion. The “very definition of” as
> >defined where? Or what, exactly, are you claiming?
> 
> That was intended to be hyperbole.

In an area that is so riddled with absurd realities as copyright law,
hyperbole is often indistinguishable from an earnest attempt at
accurate description. So, intentional hyperbole is a risky way to
communicate an understanding of copyright law.

> But, surely if any code could reasonably be claimed to be too
> trivial for copyright protection to apply, that work could.

I wouldn't think so. In writing it, you made a number of creative
decisions that could have been made differently, and hence it's a
creative work.

> >“Difficult to read” isn't the same thing as “non-creative”. On
> >the contrary; you have demonstrated that someone can creatively
> >decide on different creative expressions of the same work, to the
> >extent that you contrast your expression with one that differs in
> >its uses of variable names and whitespace.
> 
> Yes, but use of the most trivially functional possible version
> minimizes the amount of creative content.

I don't think the word “creative” means, in copyright law, what you
think it means. (Mind you, it might not mean what *I* think it means
either, and I'd love to be edifimaculated by our actual lawyers.)

In normal language we say that a work is “creative” as a kind of
contrast with “dull” or “mainstream”, and I think that's the
meaning you're intending above. But that meaning doesn't seem
relevant.

My understanding is that a work meets the copyright-law meaning of
“creative” if, in creating it, decisions of expression were made
that could have been made differently to achieve an equivalent result.
The resulting expression might be terribly exciting or it might be
yawn-worthy, but the creativity that concerns copyright law is in the
creative *process*, as judged by the fixed expression.

Or, in other words: just because an expression is dull (or otherwise
fails the common-usage meaning of “creative”), doesn't impact
whether it meets the definition of “creative” for determining the
applicability of copyright.

> If I write a phonebook, in which I hand selected the order of names
> such that they fit an acrostic, that may very well be be subject to
> copyright.
> 
> But it is well established that the standard alphabetical ordering
> is purely functional (non-creative).

Yes. I agree with your conclusion in this new example, by my argument
above. I don't see that your Javascript example is non-creative by the
same argument.

-- 
 \     “I got some new underwear the other day. Well, new to me.” —Emo |
  `\                                                           Philips |
_o__)                                                                  |
Ben Finney