Re: How can the Bettmann Arc

At 10:14 AM 10/23/95 -0500, Mark Lemley wrote:
>
> But it seems more likely to me that Gates intends to digitize these works
> and, having done so, try to exert some control not just over the originals,
> but over the digitized versions as well. That seems more problematic from
> a copyright standpoint. Right? Or is there some claim to copyright
> residing in the "creative" work of running the art through a scanner?

I would doubt that digitizing the works would give rise to a new copyright. There's just no creativity involved. My guess is that the pictures will be incorporated in compilations, such as encyclopedias, historical works, etc., and licensed to other software developers and publishers as they have been in the past.

> Even if copyright won't work, perhaps Gates can try to protect his digitized
> copies with some sort of mass-market contract (say, a shrinkwrap license?).
> But that protection doesn't seem terribly robust, even if we assume it is
> legal. All it takes is one buyer to breach the contract and anonymously
> post the material onto the Internet, and soon everyone can have free copies
> of the art. The poster may be liable for breach of contract, if she can be
> found, but presumably everyone else is free to copy the digitized work at
> that point.

That's probably correct, but I guess Microsoft is more concerned with competing mass market software than it is with the availability of the pictures alone without context or added value on the internet. Also its unlikely that other software developers are going to wander around the internet looking for random postings of useful pictures, especially if they can go to an organized, indexed source and pay a reasonable licensing fee for exactly what they need.

And query: if someone did post a lot of pictures in one place, in violation of a license agreement, and Broderbund or somebody else used them to create a new product, would Microsoft have a remedy? Tortious interference? Unfair trade practices? Conversion? If you were Broderbund's lawyer, how would you balance the risk of litigation cost and potential damages against the license fee?

John Noble
<jnoble[_at_]dgs.dgsys.com> Received on Tue Oct 24 1995 - 13:34:07 GMT