From dsaun@panix.SPAM-GUARD.com Tue Sep 15 18:50:12 1998 Date: Tue, 25 Aug 98 02:12:24 GMT From: DSaun To: roach@u.washington.edu Newsgroups: rec.games.go Subject: Re: New Books and Equipment from China (commercial) In some earlier article, Feng wrote: >>>I just bought a CD from Beijing with 10,000 games, >>>in Chinese. >> >>>BTW, are those games copyrighted ? >> In article , yutopian@netcom.com (Sidney Yuan) replied:: >Game records are not copyrightable but comments are. >This set of books have no comments. :) Hi, Sydney! Generally, I don't think rec.games.go is a good forum to discuss legal matters, because a) some readers are not familiar with USA (or other Western) law; b) there is no judge or arbiter; c) disreputable or unthinking people can say whatever they like (no matter how reckless, distorting or untrue); and d) through all the discussions that I have read, I have seen no verifiable citations to legal authority. Because of this, I have very rarely made any "legal" kinds of comments in r.g.g. However, because you are a publisher, I think I should correct the impression made by your public statement. Unlike some r.g.g. writers before you, I am reluctant to make uninformed, sweeping generalizations about what copyright law is, or isn't, for the entire planet; I have no idea what the latest status of copyright law is in China, nor will I give any opinion about the specific collection of games that was mentioned, but I can tell you that under U.S. law, the question is a bit more complicated than you have presented. Your article suggested that no collection of uncommented games can have any copyright protection. However, a compilation of material or data can be copyrighted(1), even if the material is not itself copyrightable(2). Since a Supreme Court decision in 1991, U.S. copyright law has been interpreted more strictly to require that the editor must show some minimal amount of creativity in preparing his compilation(3), beyond just "industrious collection". Of course, the resulting copyright covers only the contributions of the editor that are original; in other words, the copyright protection extends over what the editor has added through his selection or presentation, not over the individual pieces of pre-existing material(4). NON-copyright law may also apply. There has been some argument over whether courts should provide equivalent kinds of protection OUTSIDE of copyright law, when the editor uses a "shrink-wrap" contract agreement in which the consumer agrees not to reproduce the compilation(5). If the compilation is a database, other considerations may also apply. My understanding is that no international agreement was reached concerning database copyright protection in the Uruguay Round Agreements of 1994 or the WIPO Diplomatic Conference held in 1996. In the absence of international agreement, some countries have adopted national or regional legislation to protect databases. In the United States, legislation has been proposed to create non-copyright protection of databases(6), but has not been passed. I understand that the European Union has issued a directive specifically providing for the protection of databases(7), but I am not very familiar with it, and leave discussion of the EU Database Directive to appropriate specialists. I have skimmed through some of the lengthy r.g.g. threads on copyright. Some of the articles that I have read treat the subject as some kind of personal issue, with little appreciation for the conflicting legal goals that underlie copyright law. A number of articles express "public policy" arguments pretty well, but do not distinguish between what the authors feel the law -ought to be- from what it actually -is-. As I've mentioned above, with the exception of a few references to (unspecified portions of) the Berne Convention, there are no verifiable legal citations. My suggestion to anyone seriously interested in publishing a games collection, or in duplicating a games database, is: hire a lawyer, and discuss with him or her the specifics of the project which you propose. My best wishes to you, Sydney. Sincerest thanks for the books that you are bringing to the English-language Go community. Footnotes: (1) "A [copyrightable] 'compilation' is a work formed by the selection and assembly of pre-existing materials [e.g. uncopyrightable facts] or of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes a work of authorship." 17 U.S.C.A. § 101 (West 1994 & Supp. 1998). (2) See, 1 Boorstyn on Copyright § 2.02[2] (2d. ed. West 1998). (3) _Feist Publications, Inc. v. Rural Tel. Serv. Co._, 499 U.S. 340 (1991). (4) 17 U.S.C.A. § 103(b); See also, Nimmer on Copyright 3.04 (Matthew-Bender 1998). (5) See e.g., _Pro-CD, Inc. v. Zeidenberg_, 908 F.Supp. 640 (W.D. Wisc. 1996), rev'd 86 F.3d 1447 (7th Cir. 1996)(upholding shrink-wrap contract); but see, Nimmer, supra. (6) HR 2652, 105th Cong. (1997). (7) Directive 99/9/EC on the Legal Protection of Databases, 1996 O.J. (L.77 (20)(March 11, 1996). ------------------------------------------------ dsaun (dsaun@panix.SPAM-GUARD.com) Please remove "SPAM-GUARD" before sending e-mail. From dsaun@panix.SPAM-GUARD.com Tue Sep 15 18:50:12 1998 Date: Thu, 27 Aug 98 06:01:38 GMT From: DSaun To: roach@u.washington.edu Newsgroups: rec.games.go Subject: Re: New Books and Equipment from China (commercial) In article , Simon Goss wrote: >Hi dsaun, > >Have I overlooked something? Your explanation seems to be about >compilations, whereas Sidney's observations was: > >>>Game records are not copyrightable but comments are. >>>This set of books have no comments. :) > >which seems to mean game records, not compilations. > >(I have no legal qualifications whatever; just trying to be clear about >what is and isn't being said here). Hi, Simon. First, thanks for posting. (As an aside, I would like to loudly applaud the idea of "just being clear". I'm none too happy with the invective, sophistry and somewhat incorrect information that is going on elsewhere in rec.games.go. I think that there are some real, non-trivial issues, which are being largely obscured in the flames and the smoke.) So, let me try to be clear in answering your question. I think that you may have overlooked a few things: 1) the question Sydney answered may be about a compilation, not just one game; 2) in some countries, NON-copyright laws may apply as well; and 3) my post made other points concerning the poor quality of legal discussions on rec.games.go. 1) Feng, the person whom Sydney was answering, bought a 10,000 game CD and asked Sydney, "BTW, are these games copyrighted?" Feng did not make clear what is behind the question. We don't know if he was just asking a casual question from curiosity, or if he somehow intends to use 1 game, or all 10,000 games in some project. Sydney's reply suggested that because there are no comments in the games, there is nothing further to worry about. Sydney's reply suggests that this a complete answer. That worried me a little, because Sydney is a publisher, I like his work, and I would like to see him avoid any trouble in (any future, non-related) projects that he may undertake. In the U.S.A., a compilation may receive copyright protection, even if it is a collection of non-copyrightable material. However, the only thing that is protected is the editor's selection and presentation, not the individual pieces of material. Sometimes editors try to get extra protection over the individual pieces by NON-copyright devices (esp. "shrink-wrap" contract agreements), and sometimes they succeed! (Obviously, this use of contract is an "end-run" around the copyright limitations, but at least one federal appellate court has upheld it. ) If Feng, or Sydney, wanted to do something with a significant portion of the 10,000 games, (not just the 1 game which you presumed), then even if the games have no comments, there still could be a copyright problem, or possibly a contract problem. So the real answer should be, if you have a project in mind, discuss the specifics with someone who specializes in copyright and contract law. Details make a difference. 2) International treaties of copyright have been widely adopted, but they are not universal to all countries, nor are they uniformly enforced. Unlike one other r.g.g. writer, I don't favor unilateral pronouncements on planetary copyright law without a ton of research. China is quite different from the United States, Japan has it's own set of laws/customs (with which I am not familiar and which have been discussed in r.g.g. by people more knowledgeable than I). Again, different countries have differences in NON-copyright law that may be significant to a particular project (for example, the European Database Directive). My point here is not how much I know, but rather how little. Again, concerning any specific project, I would recommend consulting an expert. 3) I also made some points about using rec.games.go as a legal forum. Basically, I think its a poor place for serious discussion. Some people have no idea of what the law is, or means, or tries to do, and virtually no one cites any verifiable legal authority. Just recently, there have been several "legal" kinds of comments that illustrate my point. - One American writer suggested that a copyright is valid only if its been registered with the U.S. copyright office. This is nonsense. Although registration has some desirable effects, registration has not been required since the U.S. adopted the Berne Convention in 1989. - One German writer suggested that anything that is legally permissable must also be morally acceptable. This too is nonsense. In laws which provide civil or criminal penalties, the legal rule usually represents the outside margin of what is normally acceptable, not the center of public agreement. In practice, there are many unethical actions which are completely legal. - One American writer has also suggested, in effect, "if you don't start some lawsuit, then your claim must be groundless." This reflects fundamental ignorance of what's involved in a lawsuit (the staffing, the legal fees and other costs, problems of evidence, the risks, the chances of not collecting even if a judgment is obtained, etc.), as well as fundamental ignorance of how corporations function. Also, I don't like the spirit of his suggestion. I always prefer to see a settlement, rather than a lawsuit. Sorry for the length. Hope it's clearer. Regards, DSaun ------------------------------------------------ dsaun (dsaun@panix.SPAM-GUARD.com) Please remove "SPAM-GUARD" before sending e-mail.