Re: Reclassification - Wordperfect

["Frank Townsend" <ftownsen@iamdigex.net>]

Well.

Your principal argument as I understand it is that if a work is not fixed in
a sufficiently permanent medium, then it is not properly covered by
copyright.  Further, you argue that the definition of fixed ("a work is
'fixed' in a tangible medium of expression when its embodiment in a copy or
phonorecord . . . is sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a period of more than
transitory duration") must exclude works on magnetic media because they are
not sufficiently permanent.

Finally, you argue that copyrights for non-registered software are invalid.

All of these contentions are incorrect for the following reasons.

First, the plain language of the statute does not require permanency, only
permanency *sufficient* to allow a work to be perceived or communicated for
a period of more than transitory (i.e. brief) duration.  This excludes
things such as works of choreography not fixed in a medium (ie, a dance
routine) or improvisations.  If you want to quibble about the meaning of
"transitory" read the entry in the legal encyclopedia at Nolo.com
http://www.nolo.com/encyclopedia/articles/pct/pct13.html

"[T]he work must exist in some physical form for at least some period of
time, no matter how brief. Virtually any form of expression will qualify as
a tangible medium, including a computer's random access memory (RAM)."

Second, even if you don't believe this comment, the Copyright Regulations at
37 CFR 202.20(a)(vii) regarding deposit specifically refer to software fixed
in machine-readable format only:

"In cases where a computer program, database, compilation, statistical
compendium, or the like, if unpublished is fixed, or if published is
published only in the form of machine-readable copies (such as magnetic tape
or disks, punched cards, semiconductor chip products, or the like) other
than a CD-ROM format, from which the work cannot ordinarily be perceived
except with the aid of a machine or device, the deposit shall consist of:"

Pretty clear that the letter of the law accepts as "fixed" (for the purpose
of the statute) copies made on magnetic or other non-permanent media.

Finally, I believe you are confusing copyright (which occurs at the moment
of fixation) with copyright registration.  A work is copyrighted as soon as
it is fixed, and registration is not required.  Registration does provide
important benefits including the ability to sue for infringement (although
one can register for that purpose after the infringement has occurred) and
the ability to seek statutory damages.

True, the Register of Copyrights requires hard-copy of identifying material,
but (unless the source code is 50 pages or less) only a representative
sample for larger programs.  And obviously, this requirement does *not*
"prove that the software in it's native digital state is not enough to
warrant a copyright" since the section quoted above indicates that such
machine-readable copies are fixed, and if fixed, are already protected by
copyright even without registration.


"Arkain" <rwking@no.usa.spam.net> wrote in message
news:39907939$1@hal.grnco.net...
> Frank Townsend <ftownsen@iamdigex.net> wrote in message
> news:V5Qj5.1$xt4.131123@dca1-nnrp1.news.digex.net...
> > So you think that there is no copyright protection for those parts of
Mac
> > OS-X now lurking on Apple's programmers' hard drives?  Or a Smash Mouth
> > session tape on DAT?  Or a taped telecast of a football game?
>
> I think that copyright law is being used improperly to cover these things
> when the "letter of the law" specifically excludes them. The courts have
> shown on several occasions that they lack the technical knowledge to rule
> properly on cases directly involving high technology.
>
> > Parse the sentence again:  permanency of the copy is *not* what is
> required,
> > only permanency sufficient to allow perception, reproduction, etc.
>
> That it must be "fixed" in a medium is what implies the permanency. For
> instance, you cannot copyright a story that only exists on a chalk board.
An
> inane example, I know.
>
> You know what? I'm going to help you out by telling you that all software
> with a "registered" copyright has been properly copyrighted according to
the
> "letter of the law". At the same time I'm going to tell you that
copyrights
> for non-registered software are invalid for the reason I stated before.
> Here's why. The Copyright Registration Office requires that software to be
> copyrighted be presented as printed source code before the copyright can
be
> properly registered. That the software must be printed (i.e. *fixed* in a
> tangible medium) first proves that the software in it's native digital
state
> is not enough to warrant a copyright. Therefore the laws need to be
altered
> appropriately.