Copyright is essential to the anti-copyright people

As I’ve been digging more and more into licensing issues surrounding free and open source software, I’ve been surprised at how much the free software movement, and the copyleft movement in general, rely on copy right to enforce their ability to undermine copyright.  David Post, blogging at the Volokh Conspiracy, made this point very well in a post today:

Open source software – paradoxically, or perhaps only ironically – is entirely dependent on copyright for its legal foundations. The entire open source system relies on a complex licensing scheme (of Stallman’s invention), under which open source software is distributed under a special license that (a) gives all users certain rights (to use, copy, and modify the software) and (b) requires that any re-distribution include the same provision giving users those rights. It’s a kind of recursive non-proprietary licensing algorithm – quite ingenious.

What many people don’t understand about open source licenses is that they can be (and are) enforced by asserting a claim of copyright infringement against violators, not merely a claim for breach of contract. That is, if you take open source code and copy it and modify it and then re-distribute it without the provisions providing your users with the rights set forth in the license that you received, you will be infringing the copyright in the underlying work (in addition to breaching your contract). That principle was reaffirmed recently by the Federal Circuit, in the Jacobsen v. Katzer case, and it is of fundamental importance to the whole open source movement. Why? Because a breach of contract action is virtually worthless as an enforcement device, while a copyright infringement action is a powerful weapon indeed.

The rest of the post is interesting, too, as it discusses Post’s take on a talk given by Richard Stallman about how to reform copyright law.  I would not go so far as to say that I think the copyright system is fundamentally broken, but I am interested to see Stallman’s proposal for shortening copyright terms.  I do tend to think that shortening the default copyright term, or requiring increasing maintenance payments to extend the term (as with patents),  could go a long way to alleviate the burden of clearing rights for new works.


Regular EULA + Readable EULA: Seemed like a good idea at the time?

My friend abby directed me to, a site that provides web based tools for creating art.  Its mission is apparently to make it easy to create derivative works from the works of others that have also been created on or submitted to  The Terms of Use are particularly interesting.

First, in comparison to the Facebook Terms of Use, at least appears to be somewhat more limited in the rights that it claims to submitted works:

You acknowledge and agree that if you use any of the Services to contribute User Content to the Site in such manner as to make it available to all users or to permit third parties to contribute Content through your User account, Aviary will have a non-exclusive, worldwide, royalty-free, transferable, sublicensable (including, without limitation, by means of a Creative Commons License) right, under all of your intellectual property rights, to copy, cache, publish, display, perform, distribute, translate and store such User Content, and to allow third parties to do so in connection with the marketing or promotion of Aviary, the Site or the Services by such third parties. is still claiming the right to publish, distribute, and sublicense.  However, they don’t reserve the right to create derivative works, so it is arguable that they’re only trying to claim the rights necessary to operate the service.  Further, while they do state that the right is sublicensable, they seem to be limiting third-party licensing to situations promoting Aviary.

More interesting, though, is the fact that the Terms of Use are actually two sets of terms of use: a “Legalese” version and a “Summary” version.  Given’s stated goal of bringing easy reuse and licensing of works to the masses, this seems like a great idea for the users.

However, what if they don’t match?  Which one controls?  Isn’t it defeating the purpose of the legalese contract language if you have summary language printed right next to it that could be used to modify the scope of the legalese?

Examples and analysis after the jump…

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Major PTO Rules decision handed down today

Today’s big news in patent-land is that the Federal Circuit handed down a ruling in the litigation seeking to block the PTO’s recent rulemaking concerning limiting certain types of practice.  As always, Patently-O has the scoop.  From Patent Law Blog (Patently-O): Tafas v. Doll: Continuation Limits Invalid; Limits on Claims and RCEs are OK:

On appeal, the Federal Circuit has vacated-in-part – finding that some of the limitations on continuations improperly conflict with 35 U.S.C. § 120, but that the remaining limits [including limits on filing RCEs] are “within the scope of the USPTO’s rulemaking authority.”

The final outcome, of course, is still unclear, as the Obama Administration may choose to change strategy altogether.

Quick comment: I don’t fully understand an outcome where practitioners wouldn’t be able to file unlimited RCEs, but would be able to file unlimited continuations.  My understanding is that back in the day, there was no such thing as an RCE, and if further examination was required, an applicant would file a continuation.  RCEs were meant to eliminate some of this hassle.  So, if the results of this ruling were upheld, we’d just be going back to the old hassle that RCEs were meant to avoid?  That doesn’t seem logical.

An example of why Facebook self-governance may be unworkable

I previously discussed the fact that Facebook was kicking around the idea of reworking its terms of use, and to solicit user feedback before implementing certain types of changes.  Facebook stated that a user vote would be considered if 30% of active registered users voted, meaning that 50 million users would need to participate.  As unlikely as that seems under normal circumstances, there are probably even more reasons why this is unworkable.

Case in point:  In the past couple of days Facebook rolled out a massive change to its layout, prompting dissent from a great number of users.  This morning, a new application appeared, prompting people to vote for or against the new layout.  One blogger, at least, was impressed by this new interactiveness:

I must credit Facebook with having learned something from its previous mistakes as they are at least providing a way for users to feed back their feelings in the form of a “thumbs up or down” vote, as well as a page for people to voice their opinions in greater detail. At the time of writing, the votes in favor of the new layout were at 6,111 while votes against have already reached nearly 75,000 and are increasing every second.

However, take a look at the application page.  It states, in the bottom right corner, that this application “was not developed by Facebook.”

So, is this an official Facebook vote?  Is it a phishing scam?  Does it have any meaning whatsoever?  And is there any way to know?  I can’t tell.

In the current situation, it’s possible that, at worst, a whole lot of people just added an application that they don’t need, and gave it permission to grab their user data without knowing who wrote it or what they plan to do with the user data.

In future situations, however, if official votes were to take place, it will be important to get as many people to participate in the official vote as possible.  If the outcome could be rigged by diverting people to unofficial voting sites and duping them into thinking that they participated in the official vote, it may be even harder to get to that magic 30%.

Headnote of the Day: “Godzilla” is not descriptive

West has a fun, free feature where they pick a headnote and send it out to subscribers.  It’s not always amusing, but today’s was of high quality:

Even if trademark “Godzilla” was hybrid of Japanese words for gorilla and whale, trademark was not merely descriptive; large amount of imagination was required to associate trademark with giant, prehistoric monster, and, thus, mark was strong for purposes of determining whether likelihood of confusion resulted from alleged infringement.

Toho Co., Ltd. v. William Morrow and Co., Inc., 33 F.Supp.2d 1206 (1998)

Gorilla and whale?  I guess that explains why he’s always so angry about having to get out of the ocean.

Settlement strategy subtlety

I listened to a CD of a CLE today Policing and Protecting Copyrights on the Internet, offered by Strafford.  The participants were David Young and Andrew Bridges, both very experienced copyright litigators.  The discussion briefly touched on Google’s recent settlement with the book publishing industry concerning Google Book Search.

In a nutshell, Google had been scanning copies of books to provide search results of the full text of the books, as well as to provide images of the pages of the books.  Google was doing this without the permission of the authors or publishers of the books, and was claiming that it was fair use.  Eventually, Google settled with the authors and publishers, and the fair use question was never litigated to a conclusion.

It’s obvious that settlement often provides benefits to both parties: the dispute is resolved faster and less expensively, the risk of exposure to excessive damages can be lessened, etc.  During the CLE, though, one of the participants pointed out an additional benefit to Google of settling: whether or not this is fair use was not decided, but Google gets to continue doing it anyway.

Yes, Google could have litigated this to its conclusion, and possibly had this determined to be fair use.  In that case, Google would not have had to pay any royalties or damages in a settlement.  However, the world would now know that this activity was allowable.  By settling, Google keeps the question of whether it is fair use.  In a way, this creates a barrier of entry to those who might want to copy Google’s business model, as they would have to either come to similar terms with the authors and publishers, or they would have to spend their own money in court to litigate the fair use issue instead of free-riding on Google’s litigation efforts.

Thinking back to the Kindle case, this strategy could be another explanation for why Amazon didn’t bother fighting: sure, it could be fair use, but why litigate it when success would just lead to a zillion competitors doing the same thing?

Managing MMO property rights via the end game?

The sci-fi themed MMOG Tabula Rasa was recently shut down.  I never played it, but the basic premise of the game was that the players played the role of humans joined together to battle an alien race called the Bane.

Once the decision was made to shut the game down, the developers decided to go out with a bang.  A week before the shutdown, a message describing an imminent massive enemy attack was posted to their message board:

We request that all military personnel begin fortifying defenses at every AFS base in preparation for a massive Bane assault. If enemy troop movements are as large as we fear, and the Neph are truly prepared to lead all out war against us, this may be our last stand. Penumbra has been informed of the situation and is standing by on the use of their last resort weapon. We can not afford to be complacent or uncertain, but if it is truly our destiny to be destroyed, we are taking them all with us.

The remaining players joined in this organized event on the last night the game was operating as a kind of a sendoff.  The “last resort weapon” in the game was apparently so powerful that it took down all of the servers in the real world, and the game came to an end.

I thought this was a creative way of folding the real world cessation of the game into the story of the virtual world.  I also found this interesting, though, because of what it suggests about the power of game developers to use game mechanics to alter real-world experiences.

For example, much has been made of the real-world value of virtual property, whether MMOG participants should have a cognizable property right in said property, and whether the providers of MMOGs should be worried about liability for depriving participants of their rights in said property.   However, what if an MMOG provider eliminated the value of the virtual property, not by forcibly depriving the participant of access to the property or the ability to transfer the property, but instead by eliminating the demand for the property?

Here’s my thought experiment:  Say Blizzard wants to shut down WoW (god forbid), and players are threatening suit because they expected to be able to sell their items for real-world currency to other players (we’ll ignore the fact that Blizzard’s EULA for WoW technically doesn’t allow that, since it happens anyway).  Instead of just going and shutting down WoW, Blizzard “tweaks” the balance of the game such that giant groups of elite mobs (translated: lots of really powerful bad guys) roam through normally safe areas, infiltrate capital cities, and camp every graveyard.  In other words, the game becomes “challenging” to the point where it’s impossible to log in without your character being killed almost immediately.

The effect of this seems to be that no one would be interested in playing the game anymore.  Hence, no one would be interested in paying real-world currency for virtual items in the game.  Hence, the real-world value of those items would shrink to nothing.  Hence, Blizzard would no longer have any liability, and could shut down the game without objection.

I think it’s an interesting move because it ignores trying to solve the problem through a legal solution, and instead solves it purely with game mechanics.  It might not be the best PR move for whatever Blizzard was planning on launching to take its place, but maybe it’s a way out nonetheless?