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Re: Stack Overflow and copyrightability of small snippets

On 2020/04/23 07:50 AM, vheuser@heuserlawoffice.com wrote:
On 2020/04/23 03:47 AM, Rebecca N. Palmer wrote:
Many packages include code snippets from, or based on, Stack Overflow answers [0].

Stack Overflow user-posted content is under CC-BY-SA (the version depending on its age) [1], which is a libre license but usually not the license these packages claim to be under.  Also, attribution is usually provided as a link only, not the longer form Stack Overflow say they require [2] (though whether they legally can require that is disputed [3]).

Content is owned by the user posting it, not Stack Overflow.  It is unclear whether asking a user to dual-license content is considered appropriate behaviour.

Small snippets may not be copyrightable, but it is unclear what counts as "small" in this context; a 9 line function has been a subject of litigation [4].  There have been multiple discussions of this on Stack Overflow meta [5].  I am in England, which has been said to have an unusually low threshold for copyrightability [6].

As a packager, how do I decide which ones are long enough to require action, and of what kind? - Remove them and write a replacement?  Risks breaking things (e.g. because I'm not sure exactly what the snippet is supposed to do) and/or still being similar enough to be an illegal copy (because I had to look closely at it to determine that). - Mark the package "License: (upstream license) and maybe CC-BY-SA" (is there a better syntax for that?) and report them upstream without a patch?  Also add the full [2]-form attribution (which might actually take more time than rewriting)?

[0] codesearch says 10988 occurrences of "stackoverflow.com" in 3036 packages.  Examples:
[1] https://meta.stackexchange.com/questions/344491/an-update-on-creative-commons-licensing
[2] https://stackoverflow.blog/2009/06/25/attribution-required/
[3] https://meta.stackexchange.com/questions/209250/stack-exchange-should-stop-using-the-creative-commons-logo [4] https://arstechnica.com/tech-policy/2012/05/oracle-to-pursue-longshot-claim-for-copyright-damages/
[5] e.g.
https://meta.stackexchange.com/questions/295599/short-code-snippets-licensing-on-stack-overflow https://meta.stackexchange.com/questions/12527/do-i-have-to-worry-about-copyright-issues-for-code-posted-on-stack-overflow https://meta.stackoverflow.com/questions/286582/can-we-get-some-explicit-clarification-on-the-intended-legal-usage-of-code-fro [6] https://commons.wikimedia.org/wiki/Commons:Copyright_rules_by_territory/United_Kingdom#Threshold_of_originality

The question is not how much you can use; the question is what you do with it.   How much you copy is only evidence to prove to a court whether something was copied in fact or whether is was created independently and is merely similar.  The longer the identical parts, the more probably that the work was copied.  That is a proof problem not a law problem.  The law problem is whether a work is copyrightable at all, whether it has been abandoned to the public domain and whether the use made of the piece is a Fair Use.  Length is not a requirement.


By the way,

Vincent F. Heuser, Jr.
Hirsh and Heuser Attorneys
3600 Goldsmith Lane
Louisville,  KY 40220
(502) 458-5879

Oops, maybe I missed you point.  How short is too short?
  I think your question is answered by the Copyrightability analysis.

“To qualify for copyright protection, a work must be original to the author,” which means that the
work must be “independently created by the author” and it must possess “at least some minimal
degree of creativity.”

“[T]he requisite level of creativity is extremely low.” Even a “slight amount” of creative expression
will suffice. “The vast majority of works make the grade quite easily, as they possess some
creative spark, ‘no matter how crude, humble or obvious it might be.’”

"An author’s expression does not need to “be presented in an innovative or surprising way,” but it “cannot be so mechanical or routine as to require no creativity whatsoever.” A work that it is “entirely typical,” “garden-variety,” or “devoid of even the slightest traces of creativity” does not satisfy the originality requirement. Feist, 499 U.S. at 362. “[T]here is nothing remotely creative” about a work that merely reflects “an age-old practice, firmly rooted in tradition and so commonplace
that it has come to be expected as a matter of course.” Id. at 363. Likewise, a work “does
not possess the minimal creative spark required by the Copyright Act” if the author’s expression
is “obvious” or “practically inevitable.” Id. at 363.

"Although the creativity standard is low, it is not limitless. Id. at 362. “There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.
Such works are incapable of sustaining a valid copyright.”

Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)

A single command that does a specific thing is created by the chip maker or language creator.

Some lines of code joining commands to do a new thing is a new creative work.

The rubber will really meet the road when someone want to fight over it.

Hope this helps.   Probably doesn't apply in England.
This is not specific legal advice but only ponderings on theoretical matters.


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