Path: utzoo!utgpu!jarvis.csri.toronto.edu!rutgers!tut.cis.ohio-state.edu!unmvax!mike
From: mike@unmvax.unm.edu (Michael I. Bushnell)
Newsgroups: gnu.misc.discuss
Subject: Re: Apple/uSoft Court's "Memorandum of Decision and Order"
Message-ID: <265@unmvax.unm.edu>
Date: 3 Aug 89 18:24:51 GMT
References: <8146@hoptoad.uucp> <8180@hoptoad.uucp> <450@helios.prosys.se>
Reply-To: mike@unmvax.cs.unm.edu (Michael I. Bushnell)
Organization: University of No Money, Albuquerque, New Mexico
Lines: 35

In article <450@helios.prosys.se> ath@helios.prosys.se (Anders Thulin) writes:
>>    It is, of course, true, as Apple argues, that in 
>>determining whether an audiovisual work infringes, the work must
>>be viewed as a whole.  But where a work includes licensed
>>features as well as unlicensed features, infringement depends on
>>whether the unlicensed features are entitled to protection;
>             ^^^^^^^^^^
>>licensed features are treated as being in the public domain.
> ^^^^^^^^
>>_Cf._ _Data East USA, Inc. v. Epyx, Inc._, 862 F.2d 204, 208 (9th
>>Cir. 1988) (substantial similarity of unprotected expression
>>does not support finding of infringement).

>If the words 'unlicensed' and 'licensed' were exchanged I don't think
>I would think twice about it. But it seems a bit odd that 'unlicensed
>features are entitled to protection'. The parenthesis in the last two
>lines seems to say so to.

The point is that the license effectively removes copyright protection
for the licensed parts.  On the other hand, non-licensed stuff *is*
protected by copyright.  In other words, the license gives Microsoft
particular rights to copy and so forth.  Apple cannot sign the license
giving Microsoft such permission and then sue on the ground of
copyright infringement.  But for something *not* covered by a
contract, Apple *can* claim copyright infringement.  The case of a
"General Public License" is interesting, as a GPL isn't really a
license.  Note that a GPL is NOT a shrink wrap agreement.  A GPL is
merely an extended copyright permissions statement worded like a
license.

-- 
    Michael I. Bushnell      \     This above all; to thine own self be true
LIBERTE, EGALITE, FRATERNITE  \    And it must follow, as the night the day,
   mike@unmvax.cs.unm.edu     /\   Thou canst not be false to any man.
 Telephone: +1 505 292 0001  /  \  Farewell:  my blessing season this in thee!