[TriLUG] copyright question

[Mike M]

On Fri, Apr 09, 2004 at 10:58:39PM -0400, John Franklin wrote:
> On Apr 9, 2004, at 2:38 PM, Mike M wrote:
> 
> >On Fri, Apr 09, 2004 at 01:45:06PM -0400, Phillip Rhodes wrote:
> >Can I use my education?  I
> >believe that I can because everything I saw was documented in my HTML
> >book and I was not looking at any patented business process crap. I
> >deleted some classes and added others. I changed all the class names
> >and created all new graphic files. All text content was replaced. What
> >I ended up with is a variation on the original look-and-feel.
> 
> First off, IANAL.

Me neither.  But this guy is:
http://www.ivanhoffman.com/feel.html

There are 3 elements that must be demonstrated:

    1. Site 2 (the alleged infringer site) has copied from Site 1 (the
    site allegedly copied from);
    2. What Site 2 copied from Site 1 are elements of Site 1 that
    the copyright law recognizes as protectable elements; and
    3. That Site 1 either has provable damages or has registered
    its site, including making the required deposit of all the
    protectable elements, with the copyright office within the
    time required by the statute.

Then there is this about copying:

  But, having said that the copyright law protects against copying, the
  second element that must be proven is that what was copied is actually
  protectable under that law.  While the threshold for originality is low
  under the copyright law, there are some elements that are simply not
  protectable under the law.  Short phrases, mere ideas as opposed to the
  expression of ideas and functionality are among the elements not
  protectable.  But the look and feel, the web site interface as it were,
  can contain elements that are protectable if they are sufficiently
  original and are not public domain or taken from other sources or serve
  as so-called "methods of operation" i.e. functionality.  Much of
  the programming that creates how the site looks can be protected as of
  course can be original graphics and designs.

It appears that the changes I descibed above reduces (as intended) the
act of copying to public domain "methods of operation" which are not
protectable under the law.

This squarely addresses my concern.  What I propose is copying.  (This is
what my sense of ethics was telling me.) The law does 
not offer copyright protection to the elements that I propose copying - 
the public domain functional elements. If the functional elements
are changed sufficiently it becomes difficult to conclude that they were
copied.  This withstands my ethical tests as well since I was unable
to distinguish between the acts of reading-recreating and copying-changing. 
Both acts required learning a public domain technique.

I was able to find other references to the spreadsheet wars of earlier
times.  Phil also mentioned the GUI wars.  We all see various
spreadsheets and GUIs, so intuitively we can conclude that "look and 
feel" cannot be protected too well.

> 
> Ok, assuming such a thing went to court, it would be a civil suit, not 
> a criminal one.  The rules are different from the start, and it would 
> be a matter of the jury deciding based on arguments made by both sides 
> if copyright was violated.  What it would more than likely come down to 
> is:
> 
> 1) How much of the site did you use?  The entire thing, or just a 
> couple elements?
> 
> 2) Is some particular aspect of the violated code unique to their site? 
>  E.g., do the menus have a particular and unique property to them such 
> as fading in/out, animated action (rolling out ? la Aqua), non-standard 
> shapes, etc. that is not seen on the web in general?
> 
> and probably most importantly for the purposes of damages:
> 
> 3) Would web users be confused by your use of their style and mistake 
> your site for theirs.

Judging from the google search I did, most concern was about out-and-out
identical look-and-feel copying (which I thoroughly condemn).  I want to be able 
to read HTML and CSS (public domain functional methods) on the web and 
use what I learn without fear of
legal reprisal. This means that I should be able to read-recreate and
copy-change functional elements. As a matter of ethics, I believe that 
all written copy, graphics, and progamming names must be changed to
avoid confusion with the original.

It's as if I were a painter and admired Warhol (choosen because his
copyrights are still active and enforced) I might be influenced by
his Turquoise Marilyn:
http://www.artquotes.net/masters/warhol_andy/turquoise-marilyn-62-b.jpg
and make a similar painting using the same technique with a different
photo of Marilyn:
http://www.marilynmonroe.com/images/gallery/monm011a.gif
The influence would be obvious and the method of production 
would be similar, but no copyright infringment against Warhol would
occur.  (Disclaimer - I will not defend any analogy, this one included.
THey are weak arguements).
> 
> jf
> -- 
> John Franklin
> franklin at elfie.org
> ICBM: 38? 56' 32.6"N 77? 24' 47.7"W Z+62m



> -- 
> TriLUG mailing list        : http://www.trilug.org/mailman/listinfo/trilug
> TriLUG Organizational FAQ  : http://trilug.org/faq/
> TriLUG Member Services FAQ : http://members.trilug.org/services_faq/
> TriLUG PGP Keyring         : http://trilug.org/~chrish/trilug.asc

-- 
Mike

Moving forward in pushing back the envelope of the corporate paradigm.