independent origination

new subject line because it is quite removed from consideration and shrinkwrap licenses

> > > No, because if the work is copyrighted then even independent creation
> > > can violate copyright.
> >
> > No. This is flat-out wrong. Independent origination is a full 100% defense
> > to a copyright infringement claim. Copyright infringement in cases involving
> > copying and use and distribution rights (at least) requires, as an element,
> > copying. Independent creation by its very definition does not involve
> > copying.
>
> Let's say Motus Software creates a successful spreadsheet program. Let's say
> Papersmith Software later independently creates another spreadsheet program. I
> say independently, because the PS programmers could never have seen MS source
> code, only how the program worked--and the PS program is written in Forth,
> entirely different from the MS binary code. So you say that unless the PS
> program literally copies the MS program it is not infringement? Even if all
> the menus and functions were exactly the same? I would agree with you. Now
> tell the MS executives that I can still use the PS program I bought. (I
> actually do have it on my bookshelf right now.)
>

Without going rather too deeply into copyright law, the misunderstandings here are hard to address.

My post says nothing about what is being copied - just that copying is needed for a copy-based copyright infringement. The U.S. law long ago recognized that copyright extended to things other than literal copying. The contours of structure, sequence, an d organization copying and the limits of "look and feel" copyright claims are more than a little fuzzy. At the most abstract end of the spectrum, one cannot keep another from copying the idea of spreadsheet program. At the other end, one can make illegal literal copying of the software code. What is protectible in between these extremes is much less certain.

> > > Of course, if the work is not copyrighted then ASPs can still claim
> > > that any independent creation is a violation of their trade secrets--
> > > that is in fact what DVD CCA is claiming in the California case.
> >
> > No, they cannot claim that "any independent creation is a violation of their
> > trade secrets." There must be a wrongful acquisition of the trade secret, and
> > the secret must really be a secret. Independent creation by its very terms
> > negates wrongful acquisition. Furthermore, even reverse engineering does not
> > violate trade secret law - it if can be reverse engineered, it isn't a
> > secret. So trade secret does not protect against copying - just copying when
> > you did something else wrong like stealing the secret or violating a
> > trade-secret protecting contract.
>
> I agree with you about "improper means" as the law calls it. However,
> that does not mean that the DVD CCA cannot *claim* that this is a
> violation.

Yes it does, unless one is permitting anyone to claim anything regardless of legality of the claim. But Rule 11 does put limits on such claims nowadays.

> One consideration is that reverse engineering or independent
> creation *alone* cannot be considered improper means--it does not say
> that reverse engineering or independent creation cannot be considered
> improper if not *alone*. I don't think you mean to assert the strong
> form of your statement "even reverse engineering does not violate trade
> secret law - it if can be reverse engineered, it isn't a secret."

Agreed. Mine was an overstatement - but if it is reverse engineered, then, as to the person who reverse engineered it, there is no misappropriation of the trade secret.

>
> > > > Maybe the copyright laws aren't all that you think they are.
> > >
> > > Maybe not. Since 1976 at least it seems that we in the U.S. have gone astray
> > > from what I and many others think they are or should be. I believe it is
> > > time that the Supreme Court settled the issue of "intellectual property"
> > > law and provided a firm framework for how all of us can proceed in the
> > > coming millennium as we try to cope with new technologies and business models.
> >
> > Not possible. It is too complex, too manifold, too rapidly changing for
> > Congress or the US S. Ct. to *settle* the issues surrounding IP law.
> > Besides, it is primarily a political/legislative/money-talks issue, not a
> > constitutional one - property rights are not, except in the coarsest cut, a
> > matter for the S. Ct. to settle.
>
> Heck, I thought there *was* a Copyright Clause in the Constitution--have
> I missed something here?

Yes. The copyright clause does not establish copyright nor the contours of it. That is for the legislative branch to decide within the vague limits set by the constitution (originality, "limited terms", authorship).

>
>
> Am I being presumptious to attempt to force the issue myself, and too
> naive in praying that the Supreme Court can give us some guidance on
> this important matter?

Do I think the balance struck by Congress is wrong (especially with respect to software copyright length)? Yes. Do I think it unconstitutional? Maybe - but it is hard to find a good argument to overturn the legislature's judgment here on constitutional  grounds.

--
Prof. Steven D. Jamar, Director LRW Program               vox:  202-806-8017
Howard University School of Law                           fax:  202-806-8428
2900 Van Ness Street NW                      mailto:sjamar[_at_]law.howard.edu
Washington, DC  20008          http://www.law.howard.edu/faculty/pages/jamar

"In terms of their character, the young are prone to desires
and are inclined to do whatever they desire.  Of the desires
of the body they are most inclined to pursue that relating
to sex, and they are powerless against this."

Aristotle, Rhetoric, Book 2, Ch. 12:3, p. 165 (Kennedy
translation)