NetNews Usenet Archive 1993 #3/NN_1993_3.iso/spool/misc/legal/computin/2514

Internet Message Format | 1993-01-21 | 3.1 KB

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From: [e-mail] (Bruce Hayden)
Subject: Re: Out of print material and copyright law
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Date: Thu, 21 Jan 1993 05:38:17 GMT
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[e-mail] (Leonard Erickson) writes:

>[e-mail] (Steve Barber) writes:

>You missed my point *completely*. The original 6502 program *is* copy-
>righted. No argument there. But what I'm saying is that a port of it
>to another architecture would be "derivative work" only to the extent
>that "West Side Story" is derived from "Romeo and Juliet".

Well, first of all, West Side Story is not a good model, since
Romeo and Juliet would have gone into the public domain hundreds
of years ago, if they had had copyright back then.

But more fundamentally, you have to look at the level of abstraction
you need to go to for the "copying" before you can determine whether
or not it is a derivitive work. West Side Story is a very high level
of abstraction. Translating the algorigthms of one program would be
much lower. Unfortunately, the courts haven't been able to draw a
bright line to determine the proper level of abstration.

>The *only* way you are going to make that work is if you buy into the
>"look and feel" argument.

Only if 1) you haven't copied the arrangement of the algorithms
of the original, and 2) if the work was registered as
a literary work, and not an audio-visual work.

However, I could also argue even if the work is pre-Berne, it is still
protected as such an audio-visual work, regardless of registration,
since under the 1976 Act, protection is by operation of law (automatic)
It is just that prior to Berne one could lose protection by failure
to mark.

>What I was saying is that *no* part of the Aplle II "expression" is *usable*
>on another machine. Only the *idea*, and the *idea* is not copyrightable!

What do you mean by the "idea"? Agreed, a program that does the same
essential thing doesn't by that alone infringe. (The one idea problem
of Whalen). But - is youridea" more specific. If so, I don't think
the law is as clear as you indicate.

>What winds up being kept would be along the lines of the similarity
>between "space Invaders" and the hundreds of knock-offs that were
>done for game machines and home computers. The *code* is not at all
>similar until you get to the algorithmic level. And at *that* level,
>it is *not* the program but a *description* of the program. Thus my
>"plot line" analogy.

Again, what do you mean by algorithmic level? Sure, a single simple
algorithm is not protected. But - the combination of what algorithms
actually used, and in what order, etc. very well could be protected.

Bruce E. Hayden
[phone]
[e-mail]