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

-----Original Message-----
From: ipr-wg-bouncesietf.org [mailto:ipr-wg-bouncesietf.org]
On Behalf
Of Contreras, Jorge
Sent: Wednesday, 25 January 2006 2:23 PM
To: lrosenrosenlaw.com; ipr-wgietf.org
Subject: RE: 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 
  >be executed.  There is no reason why protocols and
code embedded
  >in standards should not also have the same level of
copyright
  >protection.

[Kieran Power] There is in fact a very good legal reason why
protocols
and code embedded in a standard may NOT have the same level
of
copyright. What you have to keep in mind is that copyright
subsists in
the standard (document) as a whole and generally not the
individual
parts, such as a fragment of code, that make up the entire
standard. If
for instance a standard was by and large a text based
description of a
particular protocol and included only a few lines of code
(pseudo or
otherwise), there is a very real chance that use of that
code from the
standard may not in fact breach the copyright in the
standard.  

  >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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