Microsoft, Who Supports Software Patents, Now Asks Supreme Court To Help It Against Patent Holder

from the live-by-the-patent... dept

Microsoft, who has become a strongly pro-software patent company (despite Bill Gates' old claim that patents would have harmed the software industry in the early days), is finding out (yet again) that such a stance can come back to bite you. We've already covered the somewhat ridiculous lawsuit that Microsoft faced from a small Canadian company, i4i, who claimed a patent (5,787,449) on an XML editing feature. Microsoft lost the lawsuit, and the court issued an injunction against Microsoft and claimed that the feature was worth an astounding $98 per copy where the feature was used. Microsoft appealed the case to CAFC who upheld the lower court ruling. Microsoft then appealed to have the entire CAFC rehear the case, and that got rejected. The only move left is to appeal to the Supreme Court that's exactly what Microsoft has now done.

To be honest, I can't see the Supreme Court actually taking this case. Unlike some of the other patent cases that the Supremes have taken recently, there doesn't seem to be any big constitutional questions here. It's just a silly patent that Microsoft is on the hook for infringing. Perhaps rather than fighting this individual battle, Microsoft will finally realize that it's stance on patents is only going to do it more harm in the long run.

Filed Under: editing, software patents, xml
Companies: i4i, microsoft

If A Book Editor Drastically Changes A Book, Would Publishing The Originals Be Fair Use?

from the or-is-that-backwards? dept

Sometimes it's fun to dig into the nonsensical conundrums created by today's copyright law. Michael Scott points us to an academic paper exploring the copyright conundrum facing the widow of famed American author Raymond Carver. Apparently, the widow would like to publish a collection of 17 "original" Carver stories. The stories have all been published previously, but in highly edited forms. The Carver estate does not hold the copyrights on those published stories, which belong to the publisher. So now that the widow wants to publish the original version of the stories, the publisher is threatening to sue for copyright infringement.

This isn't a case of just minor editing either. The paper shows how Carver's original editor, Gordon Lish, didn't just "edit" Carver's stories, but seem to have practically rewritten large parts of some of them, often totally removing sections, and frequently changing endings. The paper shows this comparative example of the original Carver ending and the Lish ending to the story What We Talk About When We Talk About Love to make the point:

Carver Ending:

L.D. put the shaving bag under his arm again and once more picked up the suitcase. "I just want to say one more thing, Maxine. Listen to me. Remember this," he said. "I love you. I love you no matter what happens. I love you too, Bea. I love you both." He stood there at the door and felt his lips begin to tingle as he looked at them for what, he believed, might be the last time. "Good-bye," he said.

"You call this love, L.D.?" Maxine said. She let go of Bea's hand. She made a fist. Then she shook her head and jammed her hands into her coat pockets. She stared at him and then dropped her eyes to something on the floor near his shoes.

It came to him with a shock that he would remember this night and her like this. He was terrified to think that in the years ahead she might come to resemble a woman he couldn't place, a mute figure in a long coat, standing in the middle of a lighted room with lower eyes.

"Maxine!" he cried. "Maxine!"

"Is this what love is, L.D.?" she said, fixing her eyes on him. Her eyes were terrible and deep, and he held them as long as he could.

[end]

Lish Ending:

L.D. put the shaving bag under his arm again and once more picked up the suitcase.

He said, "I just want to say one more thing."

But then could not think what it possibly could be.

[end]

This is not just an edit. That's a rewrite. So if Carver's widow wants to publish the original stories, is she infringing on the publisher's copyright? Is it fair use? Is it a derivative work? Or... is it something entirely different? To some extent, you could argue that with these massive changes, the actual copyright the publisher holds actually applies in large part to Lish's original creativity, and thus might not even apply to large segments of Carver's work. But, obviously there are areas of overlap that make this a lot more difficult.

The paper goes through a variety of different legal theories and questions this situation tests, and highlights some of the pertinent caselaw. It's all interesting, mainly in showing how unprepared copyright law really is to handle such basic situations as this one. In the end, the paper does make a compelling argument that the widow should be able to publish Carver's original stories by using the four factor test for fair use, noting that the work is transformative, and is really being published as something of a "commentary" on the originally published works (i.e., to show the difference). However, that point is key to the analysis. As long as the work is published specifically to comment on the editorial differences between the two -- rather than setting itself up as a "competitor," there's a much stronger fair use claim. But, as with many fair use claims, it really comes down to a judge deciding how much weight to give the various four factors.

And that simply highlights the ridiculousness of the situation. It seems that the are compelling educational reasons for publishing the original works, and yet due to the great unknown of how a judge will rule on fair use, it's not clear that the works will actually get published.

Filed Under: editing, fair use, raymond carver

Century-Old Dictionary Error Shows That 'Professionally' Edited Reference Books Make Errors Too

from the don't-freak-out dept

A couple months ago I finally got around to reading The Professor and the Madman, a book I'd actually picked up a couple years ago just because it looked interesting. It's about the creation of the very first Oxford English Dictionary (OED) and some of the characters (and I do mean characters) involved. Frankly, while the story is interesting, the book feels very padded. It's the sort of story that would have been much better as a long magazine feature rather than an entire book.

However, one thing that struck me was how the OED was basically its own version of Wikipedia at the time. After all, how do you go about cataloging every single English word ever used? Especially when there are really no other English dictionaries to speak of (at least not any that aim to be complete)? Well, you build up a massive roster of volunteers to do all the work for you. That's exactly what OED apparently did. They put out ads and flyers and built up a huge volunteer army to scour books, write down words, and highlight the definition and first usage of those words, which the OED team then assembled. The process took decades, but would have taken longer (if it would have been done at all) had it not been for the army of volunteers participating. Reading the chapters of the book about this part of the process made it sound very, very similar to Wikipedia in many ways. Of course, there was one major difference: at the end of the day, you still supposedly had the "professional" editors deciding what finally went into the book.

I'd been considering writing up a post about that similarities, but wasn't quite sure about how to fit it in, when johnjac alerted us to the story about how a physicist just discovered a 99-year old error in the OED, on the definition of the word "siphon." Apparently, the definition states that it's atmospheric pressure, rather than gravity that makes the siphon work, which is incorrect. Yet, because the OED is considered such an authority, many of the top dictionaries all make the same claim -- and some "professional" encyclopedias do as well (though, not Britannica, if you were wondering). The OED promises to correct the error, though, of course, that won't be until the next edition.

To some extent, this highlights the same point many people have made about Wikipedia for ages: both the "professionally edited" reference books and the open edited reference sources have errors. But how quickly can they be corrected? If Wikipedia had the same error, it could be corrected immediately. With OED, it appears that people needed to wait a while.

Filed Under: dictionary, editing, oxford english dictionary, professionals, siphon