116 lines
5.8 KiB
INI
116 lines
5.8 KiB
INI
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Date: Thursday, 12 April 1984 00:58-MST
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From: Ron Fowler
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To: All
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Re: INFO-COPYRIGHT AM DIGEST: APRIL 12, 1984
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[ copyright (c) 1984 Ronald G. Fowler ]
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There has been some controversy lately regarding the distribution of
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public domain software with respect to the copyright law. I've done
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some preliminary research, and thought I'd share my findings with
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the group.
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Specifically in question has been Irv Hoff's copyright of his MDM
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modem series, especially as it relates to Ward Christensen's orig-
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inal work and Mark Zeiger's extensive enhancements to the program.
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Prevention of "profit-taking" and sale of public-domain software
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has also been discussed.
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Fundamental to securing copyright protecton is the publication of a
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work; generally you may copyright unpublished work without restrict-
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ion (i.e., you don't have to maintain a copyright notice in the work).
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Legally, 'publishing' is the "distribution of copies ... to the pub-
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lic, by sale or other transfer of ownership, or by rental, lease or
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lending". I think we can safely say that work distributed by SIG/M
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and the CPMUG can be deemed legally "published".
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Both the old (1909) copyright law and the new (1978) require a that
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a copyright notice be placed in the work, in order to secure the copy-
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ight. While the newer law addresses procedures for omission of this
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notice (in order that a mistaken omission not cause loss of copyright
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protection) the older law did not. Work published prior to 1 January,
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1978 falls under the jurisdiction of the older law. In fact, Copyright
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Office Circular "R1" specifically mentions this circumstance:
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"If a work was published under the copyright owner's
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authority before January 1, 1978, without a proper
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copyright notice, all copyright protection for that
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work was permanently lost in the United States. The
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new copyright law does not provide retroactive pro-
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tection for those works."
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Now MODEM2 was published by CPMUG, without copyright notice, in
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1977. So much for any claim poor Ward might have.
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MODEM2 is therefore unquestionably in the public domain.
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(Note that the terms "copyright" and "public domain" are mutually
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exclusive, under the law. "Public domain" is work without copyright,
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either by expiration of an existing copyright, or by forfeiture of
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copyright by the author. Hence, a disclaimer like "Copyright (c)
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1984 by Calvin C. Codehacker: contributed to the public domain, may
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not be sold commercially" is a contradiction in terms, and may very
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well jeopardize the author's right to copyright. For that reason,
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I *never* refer to the "public domain" in any programs I introduce
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to the user community for which I desire to retain copyright pro-
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tection).
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(Side note: there is absolutely *nothing* to prevent a commercial in-
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terest from selling public domain work, legally or ethically. Have
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you ever seen an anthology of Edgar Allen Poe, or a recently reprinted
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"Moby Dick", both of which have fallen into the public domain? Has
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sale of these caused any kind of public outcry of "ripoff!"? Think
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about it...)
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Back to MODEM2 and MODEM7: Zeiger and Hoff's enhancements have been
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published (SIG/M, I believe) after 1 January, 1978, and thus fall under
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the jusrisdiction of the 1978 law, which provides for "derivative work".
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A "derivative work" is "a work based on one or more preexisting works".
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This seems to be subject to copyrights held by the author of the
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previous work, but is not spelled out specifically in the material
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I've seen so far. I'd hazard to guess that Hoff and Zeiger are on
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pretty stable ground, though, *unless* either has failed to actually
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secure the copyright by registration. That's where things begin to
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get a little shaky.
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Generally, you don't have to register to claim copyright; you can reg-
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ister anytime within five years of publication and still establish
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prima facie evidence in court of the copyright's validatity. There
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is a "gotcha" though: if the work is not registered within 3 months
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after publication, then no statutory damages or attorney's fees are
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available to the plaintiff in an infringement suit. In this case,
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only actual damages and lost profits are available, and in "free"
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distribution software, there are very little damages indeed (perhaps
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if the author is a professional who receives value from the circulation
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of his name in "free" software, the loss of that circulation could
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constitute a damage....).
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Now I think we have a clear idea of how to proceed with new "freeware":
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1) Claim copyright in the published work (copyright circular "R61"
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suggests placing the notice in the program's sign-on message,
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if it has one. By the way, this pub is specific to computer software).
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2) Do not fail to actually register the copyright with the Copyright
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office, within 3 month of publication.
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3) Never mention the public domain in relation to your work.
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With these requirements met, the software is protected to the extent
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that you can confidently proceed legally against infringers, including
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attorney's fees and statutory damages. Merely by virtue of your author-
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ship (and, of course, your copyright).
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---------
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Interesting aside: if you publish work with the Copyright notice
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included, you *must* deposit a copy with the Copyright office for the
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use of the Library of Congress; failure to do so can result in fines
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and other penalties. (Note that there are certain exceptions and
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modifications to this rule for various types of copyright works).
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Also: Forms are available from the U.S. Government Copyright Office:
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dial (202) 287-9100. Ask for form TX and Circulars R1 and R61. The
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cheapskates will only send you five TX's for one phone call.
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