Re: copyright under stress

On Thu, Jun 15, 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
>
> [...]
> That is a basic tenet of trade secret law, not copyright law. The
> opposite is a tenet of copyright law: when you register a copyright
> you are REQUIRED to make the work accessible by depositing a copy
> of the work in the Library of Congress which will be accessible as
> part of the public record. In respect of the tension between the
> need for trade secret protection and the public interest served by
> copyright law, the Library of Congress allows deposits of source
> code to be redacted by up to 49%, so they cannot be copied by
> competitors. But that does not make restriction of access a
> "tenet" of copyright.

Again, that's probably the way the law SHOULD be. But Microsoft is clearly claiming that the law is NOT that way, and they are clearly using copyright in an attempt to restrict access. If you read their statement, you will see that Microsoft is stating straight out that ANY revelation of code, whether it be partial, full, or just APIs, is NOT ONLY a violation of their trade secrets, but a violation of their COPYRIGHT.

The fact that they go so far as to swear it in a court case indicates that THEY believe that copyright covers trade secrets and that is FOR THEM a "TENET" of copyright. As I pointed out on this list some months ago, there should be nothing surprising about this belief of Microsoft -- Bill Gates enunciated it fully in 1980 in a magazine interview, with an obvious confusion of trade secrets and copyright -- even before object code could be copyrighted. (The odd remainder of the issues is that, previously, Microsoft stated over and over that APIs were made public, yet they were covered by copyright. Here they claim they are protected by copyright from even revealing APIs -- to competitors without a license.)

Well, if you need another example, let's refer to Jack Valenti's tortuous interview by Garbus in the DeCSS case. Mr Valenti can be said, I believe, to state the following: copyright allows fair use and teachers and librarians have fair use -- copyright law doesn't take that away from them. On the other hand, since the DMCA has been passed, it is illegal to decrypt a DVD for any reason whatsoever. When the questioner repeats the question, the answer is repeated: there is no conflict -- there is no reason to make any special provision for fair use of videos in distance education, for example. Teachers can just buy complete new copies instead (as a recent response on this list agreed -- without considering that with the DMCA, there may be no negotiation permitted -- it may be take it or leave it -- or if you buy a DVD and it doesn't run on Linux, you are not authorized by fair use to figure out a way to play it on your own machine).

Others do believe there is a conflict between the DMCA on the one hand and fair use on the other -- and that no amount of hand-waving as Bill Gates and Jack Valenti do can resolve anything. The courts, naturally, can resolve things, and it may be that the courts will agree with Cumbow, Gates, and Valenti, instead of the rest of us. Let's leave it for them, since the matters ought to become clearer in the courts soon.

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf