Friday, April 01, 2011

Copyrights to Listserv Statements? Much Ado About Nothing: If a Sentence is not CREATIVE it is not Copyrightable: That's the LAW said the Judge

Debra Cassens Weiss at the ABA Journal Law News Now reports that Judge Uses Shakespeare Insult in Rejecting Lawyer’s Copyright Claim for Copied Sentence.

MUCH ADO ABOUT NOTHING was the decision. The sentence in question was found "not copyrightable" and its forwarding online was found to be fair use anyway.

We find cases like this to be of interest because they go to the heart of the fine line between what is copyrightable and what is not.

Eugene Volokh comments on the case at Forwarding a Sentence-Long Message from a Listserv = Copyright Infringement?, writing inter alia:
"... no dice, said the district court in Stern v. Does (C.D. Cal., decided Feb. 10, 2011 but just now made available on Westlaw) ... concluding that the message lacked the modicum of creativity required for copyright protection — because it was so short and dictated by functional considerations — and that the copying was a fair use...."
We find the whole line of reasoning of Judge Dolly M. Gee in Stern v. Does (C.D. Cal., Feb. 10, 2011) to be exemplary for the entire rationale applied to intellectual property protection -- or not.

Software code, for example, is all the better the shorter it is and the more functional it can be made to be. One line of software code is about as creative as saying "if n=1 then go to 2", where n is a line of code.

That is why we oppose in principle software patents and copyrights on software code unless they apply to some cohesive software module or total software program. It is the way that functional elements are put together that is creative. The code itself is already defined by the programming language used and is functional in function, rather than creative, so why should it be protected??

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