Copyright of Facts

[InfoNuovo at cs.com]

Alex,

Interesting. Thanks for your response.

It looks like there are two themes here.

1. The first has to do with the use of facts from a work of authorship.  I
take the question to be whether the measurements you make are to be
construed as facts and could be used without being independently
(re-)derived.  I don't have anything at hand that provides guidance about
that.  I suspect that the measurements, if professed to be facts and taken
as factual (in the empirical scientific sense), would not themselves be
copyrightable subject matter, yet there might be a line that could be
crossed by someone using those facts and incorporating them in another
literary work.  Prudence would be advised, yes?

2. The notion that data submitted to a program could cause that program to
become a derivative work, whereas feeding it other data, which is also
suitable for the program, wouldn't.  This isn't something I intend to worry
about.  I can see how the output of the program might also be a violation of
some IP right held by another, but it is hard to see how the program becomes
a derivative work of its data as a general position.
  2.1 It might be a violation of copyright, license, whatever to use the
data with the program, but I don't think there is any way the data can
ordinarily infect the program into being a derivative work, regardless of
the logic of any argument to that effect.  It seems pretty clear that the
consequences of that as a doctrine are completely unacceptable to the public
interest and I would be stunned if it got anywhere.   Even if the data is
used interpretively (i.e., it qualifies as software) as part of the
program's procedure, I don't think we get very far.  (E.g., is GNU running
on a Sun Sparc a derivative work of the Sun Sparc processor?  Does csh
become a derivative work under the GPL when used to execute CVS?  Is a
program that makes calls to the BIOS firmware of, say, an Apple IIe a
derivative work subject to Apple intellectual property rights and licensing?
[As I recall, Apple once attempted to require licensing of software that
used one of their BIOS interfaces but the maneuver was simply
self-defeating.])  I am not considering non-copyright protections here.
Just copyright.
  2.2 I do work for which the LGPL is more appropriate than the GPL.  It is
not so much that the LGPL is needed, but that it makes clear that there is
no intention to restrict certain uses of a library that *might* be construed
as creation of a derivative work.  For me, the LGPL is an assurance to users
of my work that I will make no such claim and I give non-exclusive
unrestricted license to make such works if it is ever determined at some
future time that there is a derivative work involved.  That's been my
thinking on this.
  2.3 You suggested that the map data might be licensed under GPL.  OK, so
the compilation of data is copyrighted.  Isn't this first and foremost a
straightforward question under topic (1)?   An obvious derivative work would
be more data compilation, wouldn't it?  I think it hinges on what of the map
data is copyrighted subject matter, GPL or no.

Because maps, photographs, and works of that kind are subject to different
rules outside the domain of literary works, I don't want to go down those
roads.

-- Dennis

-----Original Message-----
From: anicolao at cs.com [mailto:anicolao at cs.com]On Behalf Of Alex Nicolaou
Sent: Wednesday, November 17, 1999 17:41
To: InfoNuovo at cs.com
Cc: Alex Nicolaou; Bruce Perens; johnston at vectaport.com;
license-discuss at opensource.org
Subject: Re: Copyright of Facts

[ ... ]

The real area of confusion is whether a measured quantity should be
considered a fact. The method and (in)accuracy of the measurement
process could, potentially, be regarded a creative effort.

[ ... ]

If I take a series of measurements, I affect how accurate they are by my
methodology, choice of units, etc. This is not considered to be "art",
but the fact remains that few could reproduce my measurements exactly
without consciously attempting to do so. Given enough measurements, the
probability of reproducing my results is near zero.

> For me, the question would be whether there is anything in this area of
> basic copyright application that requires special attention in open-source
> licensing or is this just basic stuff of copyright generally?  Say more
> about your concern.

The question was brought to the fore by the existance of GPL'ed map
data. Bruce implied that these GPL'ed data are only weakly protected by
copyright law since they represent facts. If this is so, then we should
not GPL databases of measurements, since the license "protects" a work
that can be freely copied anyway.

On another thread we are discussing what it means to "link" GPL'ed and
non-GPL'ed work together; the way that thread is going could imply that
since the map data are under GPL, any program which relies on this
dataset for proper operation would need to be GPL'ed ... for example a
game whose world was constructed based on the map data and would not
work with another dataset.

> PS: I was told long ago that mapmakers once put intentional errors into
> their maps specifically as a way to detect plagiarism.

This makes my point exactly. Errors in the map data, whether intentional
or not, allow one to distinguish between a derived work of my collection
of measurements versus a re-measuring of the data that are in my
collection. If measurements are facts, then it doesn't matter: copyright
law doesn't permit facts to be copyrighted. If I take your map and print
a trivial transformation of it, such as a mirror image, the error would
show up and allow you to prove that it wasn't my original work.
Similarly, if I recompile the map data into a new database format, the
fact that I have reproduced all the errors of the original data suggest
that I have violated the map data copyright. All this assumes, of
course, that measurements are not facts and that they can be copyrighted
- but the correcteness of that assumption is unclear.

> PPS: I would quibble with your example.  As far as I know, under copyright
> there is no quantitative limitation on the use of facts from works of
> authorship.

Your quibble is perfectly valid if measurements == facts.

alex