On Wed, 29 Dec 2004 04:52:57 -0600, Richard J Kinch
wrote:

The underlying facts, if they are public domain, aren't copyrighted
and may be freely used. But originality and creativity, as the court
defined them, aren't limited to the facts. They also apply to the
arrangement and selection of the facts. If you copy the arrangement
and selection you may well infringe the compilation copyright.

"Arrangment", is a non-issue, because in the case of books like MH,
there is minimal authorship involved in the arrangment (order of
chapters, layout of tables, ho hum), but in any case it is trivial to
come up with an different "original" arrangement.

hot button ON

You've never been involved in one of these projects have you?

Let me tell you a little story.
Last year I worked for a company that was in the Internet yellow pages
business. One of my projects was to develop an ontology
(classification scheme) of about 5,000 entries for the business
listings on the company's web site. It took something like a total of
three person-months to develop and do rough testing on that
'arrangement' -- and that was followed by a lot more field testing.

As the guy who actually put the damn thing together, I had to work
closely with our database designers on one hand and our sales and
customer service people on the other to come up with the appropriate
arrangement. And we won't go into how many 'discussions' we had or how
much research some of us did to come up with the best design.

This was purely a matter of arrangement of facts -- in fact mapping a
set of standard categories to the appropriate synonyms. But it most
definitely met the tests for compilation copyright.

Arrangement is anything _but_ a "non-issue" on nearly any non-trivial
collection/compilation and there's more than enough involved in almost
all of them to meet the Supreme Court's test.


"Selection" is also a non-issue exactly for this type of book, because
the selection of "an encyclopedia of everything known in this subject"
(which is the "handbook" or "definitive reference" claim to value) is
not original.

Nope. Not unless you're including the entire universe of known facts
about the subject -- which is an impossibility in such a book. See the
_Warren_ case I cited in another message in this thread.

The database model really doesn't apply here, because the
subject is a motley collection of sundry facts, and there isn't some
database antecedent to what is in MH anyway.

That's a rather strained distinction. One I suspect you'd be hard put
tp support. How do you intend to distinguish a 'database' from a
'motley collection of sundry facts'? And what makes you think it makes
any difference at all legally?

I'm also perplexed as to how the old theories of copyright can
survive, because they are based entirely on copies costing something
to make, and money changing hands for copies being made, neither of
which is the case on a.b.e.

How are copyright theories based on copies costing something to make?

That's a conclusion I've made from my own unpublished analysis, which I
can't really detail now. But try this thought experiment: Imagine
anyone could clap three times and *poof* a perfect copy of a book
appears for free, in the privacy of your home. No printing press, no
bindery, just *poof*, it's there. No effort or expense on your part,
just speak the title and clap. Everyone then becomes either a clapping
copyright
criminal, or somebody who drives to Barnes and Noble and spends $25 for
a best-seller, when he could have stayed home and just clapped.

You're confusing the ability to commit an illegal act with making the
act legal. The fact that you can easily and quickly violate a
copyright does not invalidate the copyright. As a practical matter
ease of violation should (and usually does) eventually have an impact
on how the law is modified or interpreted, that does not effect the
underlying law itself -- which is why things like the DMCA are so
pernicious.

An entire publishing industry is then based on people doing something much more difficult and
costly than has to be, assuming anybody honors the malum prohibitum of
clapping.

You seem to be fascinated with the notion of malum in se versus malum
prohibitum. However I don't think you understand the distinction.
(Hint: All copyright law is malum prohibitum. Malum in se doesn't
enter into it.)

In short, in the ancient idea of copyright (actually only a few hundred
years old), the notion of a tangible "copy" was implicitly something
that took effort and materials (because until recently, it always
did--paper, ink, film, vinyl, whatever), and if someone was going to
that significant trouble and expense, it was the author's right to say
who.

Have you ever read any of the standard legal analyses of the notion of
copyright? Or the histories of printing, publishing and copyright? You
certainly don't seem to have any familarity with them.

The notion of copyright grew out of the idea that the author should
profit from his/her work. (Okay, that's a first approximation, but it
will do for this discussion.) The effort that was -- and is -- being
protected is the creative effort involved in creating the work in the
first place. The cost of reproducing the work does not and never has
entered into it.



As copying becomes a vanishingly trivial event (in the physical sense),
then the author's right
to control your vanishingly trivial (physical) actions vanishes. As the
lawyers say, the law does not deal with trifles.

Copyright *never* extended to trivial actions of copying: When you read
a book, you are forming images on your retinas that are copies, yet not
protected; you can make these copies all you like. Libraries can
project copies of a single paper book into limitless eyeballs for free.

They can in the United States because United States copyright law has
a specific exemption for libraries. This doesn't always exist in other
countries.

DVD movies are copied within the electronic player every time they are
played.

You might want to read up on the analysis of what is going on here.
And the hoops the courts have jumped through on this one.

Such exceptions prove that the basis of copyright is absolutely
not copying per se;

Utterly incorrect. Copying per se, when not covered by one of the
various exceptions in the law, is indeed copyright violation.

it is mere economic expedience, fitted arbitrarily
to each circumstance, and exclusive of trivial
actions, not some high principle of property rights.

Wrong. Copyright is a property right.

This is also
exhibited in the 1700s constitutional language of "limited times" and
the more recent doctrine of fair use.

Nonsense.

And copying has become non-copying, that is, an altogether trivial
event. A fraction of a square mm of microscopic, invisible, magnetic
polarization patterns change from one jumble of bits to another.
Nothing else in the universe changed. This is a crime?

You bet it is.

--RC


"Sometimes history doesn't repeat itself. It just yells
'can't you remember anything I've told you?' and lets
fly with a club.
-- John W. Cambell Jr.