Re: websites: public vs private information?

We see things differently here, which does not mean you are wrong, just that I think you are partly wrong.

On 06/09/2000, Dodi Schultz <schultz[_at_]compuserve.com> wrote:
>
> On Thu, 08 Jun 2000, Ransford Pyle <pyle[_at_]mail.ucf.edu> wrote:
> >
> > [...]
> > fixation in a tangible medium of expression.
>
> Yep; that's what the law says.
>
> > And if that is so, all we have to do is use an expansive
> > interpretation of 'tangible,'
> > [...]
> > If copying sound waves in the form of music infringes, why not
> > the sound waves that we perceive as words?
>
> Because, as far as I know, we (you, or I, or anyone) cannot use
> an "expansive interpretation" of a term employed in law. The
> very essence of any law *must* be agreement on what the words mean.

One uses an expansive interpretation at one's peril, of course, but what counts is whether we can persuade a court to agree, in which case that is the law.

> "Fixed" is defined by the law; I've already quoted that definition
> here.

If 'fixed' means saved in RAM because a judge so declares, then all we need is for another judge, preferrably at a higher level, to disagree and fixed doesn't mean that. More knowledgeable folks than I are convinced that judge's declaration was ill-informed and cannot stand. We shall see.

> "Tangible" is not defined there, because there is general agreement
> on what the word means: "capable of being touched; material or
> substantial" (Random House, 1999); "capable of being perceived esp.
> by the sense of touch; palpable; substantially real; material"
> (Merriam-Webster, 1996).

BUT, here again it doesn't matter what 'tangible' means in Webster but what a court says it means. It is used in the statute and therefore becomes a matter of law, for the court and not for Webster. Nevertheless, the term admittedly has a meaning. Although its Latin derivation suggests 'touching' I prefer the 'material' definition. To me it means recognized by the senses. I may be wrong, perhaps that is why the lawmakers felt impelled to refer to 'phono-records' but I think they knew music required a different treatment with so many means of sound recording. "Substantially real" -- I like that -- that covers what I mean by scribbling notes and a thought at lunch with a colleague -- real, yes, but perhaps insubstantial.

> By what court has a sound wave been defined as tangible?

Did you follow the thread on jazz improvisation that recent appeared in this group. I thought it presented a real problem. If jazz musicians regularly perform via improvisation, are there performances protected by copyright? I suspect most courts would say yes. I consider the music tangible and surely it is as 'fixed' as the first outline of written work. and it represents the sort of creativity the law would encourage.

> > But here is where I get hung up: If fixed has nothing to do with
> > permanence but only with tangibility, then any physically detectable
> > expression is 'fixed'
>
> No. "Physically detectable" is not synomymous with "tangible." One
> can physically detect something with one's eyes or ears or sense of
> smell; that doesn't make it tangible.

Here is where we disagree.

> > and if fixation has nothing to do with authorship, then it only
> > matters that one makes a tangible form of an expression to invoke
> > copyright protection.
>
> No, Ran, you confuse two distinct requirements for copyright
> protection. To "make" is not necessarily to create something that
> qualifies for copyright protection; that depends on originality and
> other factors.

And here is where we agree, but I fear drawing the line between 'making' and 'creating' is obscure.

> > Why do we have all these intellectual property lawyers anyway?
>
> Now, *that* is a whole other question, IMO entirely outside the scope
> of this listserv. <g>

I apologize for exceeding our limitations, it was not meant to be answered.

Ransford Pyle
<pyle[_at_]mail.ucf.edu> Received on Mon Jun 12 2000 - 01:35:09 GMT