The Law... Definition of Derivative Claims...

I agree that the IETF's procedures regarding outbound
license rights need to be clearer.  However, I don't agree
with Larry's argument that the copyright "merger"
doctrine
automatically negates the copyright in standards documents
that
are intended to be implemented.  That position is certainly 
advantageous to the open source movement, but is not, in my
view,
a settled or generally-accepted principle of law.  Copyright

exists in computer code, even though the code is intended to
be executed.  There is no reason why protocols and code
embedded
in standards should not also have the same level of
copyright
protection.

Larry claims that this interpretation would give copyright 
"way too much power to control technology".  This,
however, is a policy argument,
not a legal argument.  I am not aware that courts have yet
adopted this limiting view of copyright. 

This being said, I also disagree with Todd's position that
every implementation of a standard constitutes a derivative
work of the text of the standard.  Copyright only protects
text, not the ideas described by text (which are protectable
by patent).

Given this level of disagreement on the basic legal
principles
that apply, it is doubly important that the language of the
IETF's IPR policies be as clear as possible.



-----Original Message-----
From: ipr-wg-bouncesietf.org [mailto:ipr-wg-bouncesietf.org]On Behalf
Of Lawrence Rosen
Sent: Wednesday, January 18, 2006 7:37 PM
To: ipr-wgietf.org
Subject: RE: The Law... Definition of Derivative Claims...


> I am asserting that derivative rights are needed to
republish 
> in any excerpted form other than as the 'whole
enchiladas'... 
> And that if a version of the protocol is implemented
using 
> those mnemonics and notations, that it will indeed
violate 
> the copyright against that.

To the extent that copying an expressive piece of code is
necessary for an
implementation of a functional protocol in a published
standard that we
*intend* to be implemented, copyright can't prevent the
copying. This is
based on the "merger doctrine," as expressed in
the section of the Copyright
Act that Harald previously referenced. And when a change to
that code is
required in order to achieve a functional result, that
change can't be
prevented based on an exclusive right to create derivative
works.

That would give long-term copyright way too much power to
control
technology. The law doesn't countenance that. If you want
your software
ideas not to be copied and evolved, either keep them secret
or patent them;
don't expect copyright law to help you.

IETF's current procedures for in-bound and out-bound IP are
not clear about
this. That's why I'm delighted that this working group is
trying to clean up
those procedures.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices
(www.rosenlaw.com)
Stanford University School of Law, Lecturer in Law
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
   Intellectual Property Law" (Prentice Hall 2004) 
   [Available also at www.rosenlaw.com/oslbook.htm]
 
 

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