[h2o-discuss] more edges to IPR

[Eric Eldred <eldred@mediaone.net>]

earlier I wrote about IPR abandonment (without a response
from the experts) and today I want to take another
imaginative flyer in IPR theory to see if it might help
to clarify our thinking about the subject, which seems
obviously central to our Open endeavors.

I'll cite two news stories, the first at
(sorry, the URL is so descriptive it runs over...):

http://www.boston.com/dailyglobe2/216/nation/Police_use_of_press_photos_on_Woodstock_riots_assailed+.shtml

and the second for some reason is in the print Boston
Globe for today but not online.  It is about the
arbitration agreed to, for the U.S. to pay the
Zapruder family $18 million for the original copy of
the film of the Kennedy assassination, seized last
year from the family on the grounds that the artifact
is a critical record of the assassination and should
be preserved by the government.  (Zapruder has died.)

According to the article, the family retains copyright
to the film.  It has earned hundreds of thousands of
dollars over the years from videocasette sales and
licensing exerpts as in Oliver Stone's film "JFK".
The family "also said it is seeking to transfer the
copyright control over the film to a public institution."

According to the article, John Tunheim, a Minnesota
federal judge and chairman of the Assassination Records
Review Board (which seized the film), said the panel
considered it critical to keep the film "in the hands
of the American people.  We didn't want to see it cut
up into individual pieces and sold off, as was
threatened at one time."  The article states, "But
a better solution for U.S. taxpayers, he said in an
interview yesterday, would have been for the family to
agree to donate the film to the government."  Others
said the amount paid was "obscene"--"this was just the
raw film.  Its value was purely symbolic."

In the other story, New York State Police posted on
their web site photographs of Woodstock '99 music
festival rioting and asked readers to identify the
perpetrators.  The Associated Press said that the
photos had been copied from its web site without
permission and demanded unsuccessfully they be removed.
(BTW, this story is also credited to the AP.)

In an interesting legal opinion, Glenn Valle, chief
counsel for the state police, said his review
indicated that there may not be a copyright issue.
"It was material that was already published," he
said, "It's like walking around with the front page
of the Daily News asking, 'Do you recognize this guy?'"


So here is my own speculative, imaginative case:

The outgoing (in both senses) Republican governor of
the state of Washington just before leaving office
signs a contract with the Microsoft Corporation for
a site license for the Windows 2001 operating system
for the entire state government, in return for a
$1 billion payment.

The incoming Reform Party governor is soon faced with
huge problems running the state because the new
operating system frequently crashes.  Several state
police helicopters are lost, the welfare system computers
collapse, and the governor declares an emergency.  After
conferring with her computer and legal experts, she sends
the state police to Redmond to seize the source code to
the software.  She publishes the source code on the state
web site and pleads with open source programmers to 
volunteer to help to fix the code that Microsoft has
repeatedly been unable to make work.

When sued for copyright infringement, the guv replies
that she has not seized the copyright, only the source
code (citing Zapruder)--the company is still free to
sell the software and prevent others from selling it.

The state had a valid purpose in seizing the source
code because of the state of emergency and the state's
requirement to protect the public interest, she states.

In addition, she cites the Supreme Court decision last
term that excused the State of Florida from patent
infringement, because the states are sovereign and
do not need to comply with federal intellectual property
law.

Don't tell me that this case would be settled out of
court when Microsoft buys the entire state of Washington!

How would you rule?  What theories of intellectual
property would you rely on?  Have you passed your bar
exam yet?

-- 
"Eric"    Eric Eldred      Eldritch Press
mailto:EricEldred@usa.net  http://eldred.ne.mediaone.net/
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