[linux-elitists] *tris?

Rick Moen rick@linuxmafia.com
Mon Jul 10 12:02:47 PDT 2006

Quoting Don Marti (dmarti@zgp.org):

> One Tetris-like game for a non-free platform got a
> C&D from The Tetris Company.
> http://simonhaertel.de/
> http://www.boingboing.net/2006/07/09/mac_tetris_game_kill.html


Date: Mon, 10 Jul 2006 11:59:49 -0700
From: Rick Moen <rick>
To: chris.wells@gmail.com
Subject: Copyrights on computer program features
X-Mas: Bah humbug.
User-Agent: Mutt/1.5.11+cvs20060403

Dear Chris:

I see that I neglected to address the matter of "look and feel"
copyright claims.  Again, I cannot offer you legal advice on your or any
other specific real-world situation (and am not an attorney), but am
glad to pass along what I believe I know about the law in general.

I'm sure you're familiar with the general distinction between patent and
copyright law.  Patent title secures a limited-time monopoly over all
uses of a covered useful technique (idea) or algorithm, no matter how
implemented, by whose creative efforts, and for what purpose.  Patents
must in the USA be granted by the US Patent and Trademark Office.  By
contrast, copyright title grants a limited-time monopoly over literal
and non-literal copies of a specific creative, original "work of
authorship" that has been instantiated "in fixed form".  In almost all
countries (Berne Convention signatories) including the USA, title over
copyright vests in the work's creator at the moment he/she creates it in
that "fixed form" (that term meaning tangible existence, e.g., that you
must write your novel to own copyright over it, not just have it in your

The USA Copyright Act includes this language to disentangle the scope of
copyrights from those of patents:

   In no case does copyright protection for an original work of
   authorship extend to any idea, procedure, process, system, method of
   operation, concept, principle, or discovery, regardless of the form
   in which it is described, explained, illustrated, or embodied in such

This is often called "the idea/expression dichotomy".

Computer software tends to give rise to a slightly fuzzy area concerning
the expressive elements of those programs, where plaintiff claims that a
competitor's computer program unlawfully copied the "creative work of
authorship" embodied in particular screen or menu layouts.  If the court
found that such screens or menus were creative/original and _expressive_
(and thus copyrightable) and had been substantively copied, the
defendant's work _could_ be found to infringe.  (This is what Lotus
unsuccessfully claimed Borland's Quattro Pro spreadsheet did, losing on
appeal, and what Apple claimed in its 1994 lawsuit against Microsoft,
which effort likewise fizzled.)  On the other hand, if they are judged
to be "utilitarian" (as opposed to creative), then they are not
copyrightable, and no infringement occurs.

Basically, this provision is intended to prevent abusing copyright law
to sneakily create quasi-patents without needing to satisfy patent
requirements, and to prevent copyright holders from saying "You may not
copy the _idea_ of my creation."  For example, plaintiff asserting "Your
program may not show screen objects that move in a fashion similar to
mine" would be an example of extralegal overreaching.  In particular, if
concerning any element claimed to be copyrighted, the idea of what it
does and the way it's expressed are so closely tied that few variations
are possible, then copyright coverage is _denied_ lest it prevent others
from implementing that same idea.  (This is called the "merger

Personal comment:  Again, it's very common for corporate attorneys'
threat letters to overreach in exactly that fashion.  It costs them only
postage, and it is completely _legal_ for them to assert nonsense demands:
They face no adverse consequences from making bogus demands, and so
frequently so on a "nothing to lose" theory.

More at:  http://www.bitlaw.com/copyright/unprotected.html

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