Subject: Re: DRM-incompatible licenses
From: Seth Johnson <>
Date: Wed, 05 Apr 2006 13:53:27 -0400

Keep that paper in your pocket.  The exclusive rights under
copyright are "subject to" fair use, not the other way around.

The purpose of copyright is specifically for me to make use of
the information published in the work freely:


The mere fact that a work is copyrighted does not mean that every
element of the work may be protected. Originality remains the
sine qua non of copyright; accordingly, copyright protection may
extend only to those components of a work that are original to
the author. Patterson & Joyce 800-802; Ginsburg, Creation and
Commercial Value: Copyright Protection of Works of Information,
90 Colum.L.Rev. 1865, 1868, and n. 12 (1990) (hereinafter
Ginsburg). Thus, if the compilation author clothes facts with an
original collocation of words, he or she may be able to claim a
copyright in this written expression. Others may copy the
underlying facts from the publication, but not the precise words
used to present them.

The primary objective of copyright is not to reward the labor of
authors, but "[t]o promote the Progress of Science and useful
Arts." Art. I, s 8, cl. 8. Accord, Twentieth Century Music Corp.
v. Aiken, 422 .S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84
(1975). To this end, copyright assures authors the right to their
original expression, but encourages others to build freely upon
the ideas and information conveyed by a work. Harper & Row,
supra, 471 U.S., at 556-557, 105 S.Ct., at 2228- 2229. This
principle, known as the idea/expression or fact/expression
dichotomy, applies to all works of authorship.

[. . .] "sweat of the brow" courts [. . .] handed out proprietary
interests in facts and declared that authors are absolutely
precluded from saving time and effort by relying upon the facts
contained in prior works. In truth, "[i]t is just such wasted
effort that the proscription against the copyright of ideas and
facts ... [is] designed to prevent." Rosemont Enterprises, Inc.
v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966), cert. denied
385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967).

"Stephen J. Turnbull" wrote:
> >>>>> "Seth" == Seth Johnson <> writes:
>     Seth> In short, almost every word you write here is the inverse of
>     Seth> what I said.  There are the inverse of what is acceptable in
>     Seth> a free society, I might add.
> You might add it, but you'd be wrong.  I have in my pocket a signed
> declaration that you're right, and I'm wrong.  You have no right to
> copy that, much as you would like to.  Nor are you free to do so.
> That piece of paper is my property.  Perhaps you would call a society
> in which you can override my right "free", but I would be horrified.
> Copyright is "simply" an artificial extension of that property right,
> which facilitates contracting over the release of copies of expressive
> works to the public.
> Copyright has many obnoxious effects, too, but almost all of the
> effects, obnoxious and otherwise, of copyright can be duplicated via
> secrecy, contract, and the laws prohibiting theft---at much, much
> higher cost.
>     Seth> Copyright is an "exception" to the freedom to use published
>     Seth> information.
> No.  Copyright is a specific legal right to control certain uses of
> copies of an expressive work.
> It has no relevance to your freedom to use the information embodied in
> that work, unless you lack the originality to express it differently.
> You may even *independently* produce the same expression of the
> information.  (Granted, independent production is often hard to prove,
> but in principle you have every right to do so.)
>     Seth> I need no "positive" right to use (and copy) the factual
>     Seth> elements of a published copyrighted work.
> Absolutely true.  But nobody's talking about factual elements.  Why
> did you bring them up?

Because it goes right to the question of whether I need a
positive right to use published information.

>     Seth> I hope I am understanding what you mean by "positive" and
>     Seth> "negative" rights.
> A positive right is the right to do something.  It is sufficient in
> itself to give permission to do that act.

Based on your elision of the rest of what I said, I take that I
am correct: you believe I have to be positively given a right, to
exercise it.


> A negative right is the right to prohibit someone from doing
> something.  Refusing to exercise that right does not imply, by itself,
> permission, because there may be other negative rights involved.
> --
> Graduate School of Systems and Information Engineering   University of Tsukuba
>        Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
>         Economics of Information Communication and Computation Systems
>           Experimental Economics, Microeconomic Theory, Game Theory


RIAA is the RISK!  Our NET is P2P!

DRM is Theft!  We are the Stakeholders!

New Yorkers for Fair Use

[CC] Counter-copyright:

I reserve no rights restricting copying, modification or
distribution of this incidentally recorded communication. 
Original authorship should be attributed reasonably, but only so
far as such an expectation might hold for usual practice in
ordinary social discourse to which one holds no claim of
exclusive rights.