Thursday, January 26, 2012

Convince me this isn't copyfraud and I'll buy you a Billy


This appeared on the back of the piece of cardboard that serves as backing for my new Billy bookcases. In what is Ikea claiming copyright?  And no, it's not the instructions.
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10 comments:

Bruce Boyden said...

The label itself? Under ADA v. Delta Dental, that 5-digit number there could be copyrightable all by itself. Plus you've got some selection and arrangement of the other elements.

1:25 PM
Rebecca Tushnet said...

A valiant try, Bruce, but I can't see anything that meets even Feist's low standard in the selection and arrangement. But I'll buy you an Ikea washcloth for the number suggestion!

1:34 PM
Gordon said...

Maybe "Billy" is a character? Be careful next time you design your own DIY bookcase!

12:04 PM
Mac Harwood said...

Why isn't a flat back bookshelf eligible for copyright?

After all - it has characteristics that aren't purely functional. If I draw a nice pattern on wood then it is covered by copyright. If I cut out that nice pattern and call it a 'flat pack' .. shouldn't that be equally covered.

It wouldn't cover, of course, someone creating a similar design - that would be what a trademark or design mark would cover.

But it would cover the simple case of someone taking the bookshelf flatpack and simply duplicating it.

In a simple case - imagine that I fed the bookcase into a 3D scanner and then fed the results into a 3D printer to make a duplicate.

Wouldn't that be a violation of copyright? In fact it wouldn't even need a fancy new 3D scanner & printer since it is a flat pack ... any old scanner and computerised milling machine could make a perfectly functional copy.

6:11 AM
RT said...

Mac, I'm afraid I have no idea what the separable features are that you think exist in this useful article. Absent originality, of course pure copying is fine. Drawing a picture of a bookcase gives no rights in the built bookcase.

8:31 AM
Mac Harwood said...

I'm equally perplexed why someone would think that there is nothing that copyright applies to. I think we have a failure to communicate.

I had this same failure to communicate at the Orphan works roundtable to review the proposed changes to Copyright here in Australia. Most of the other parties were lawyers and artists - who couldn't handle the concept that copyright equally covers works of engineering. They just couldn't perceive that there is 'art' in a functional work. To an engineer it just seems obvious - but the lawyers and artists just couldn't see it.

I think part of the problem is that they look at something 'boring' like the bookshelf and can't see that it could be made any other way. However an engineer looks at it and sees hundreds of little creative decisions - each one seemingly inconsequential but each one is a still a separable feature.

The basic utilitarian function is to hold books. Yet there are literally millions of ways you can do that and still have a structurally sound item. Just look at this example: http://www.instructables.com/id/Invisible-Book-Shelf/

I don't think non-engineers will ever appreciate the hundreds of little separable features that go into something that appears so mundane.

Mac

8:49 AM
RT said...

And yet you still haven't identified a feature of this bookcase that is separable from its function. I will readily concede that some bookcases will have features physically or conceptually separable from their functions. But being a product of choices, being elegant, or being one of many alternatives--none of these are sufficient for copyrigtability. Perhaps a utility patent would have been available for a new and nonobvious configuration. But not copyright. In US law in particular, product design of useful articles cannot be protected without separability, which is more than the mere existence of alternatives.

10:16 AM
Bruce Boyden said...

I missed that the item being sold was the entire bookcase and not just the cardboard backing. But I don't think it matters; Mac, I'm hard-pressed to see what it is in the bookcase linked to that is a "feature that can be identified separately from, and [is] capable of existing independently of, the utilitarian aspects of the article." It's a bunch of shelves, a back, sides, top, and something to stand on at the bottom. If that's copyrightable, the "useful article" doctrine defines a null set.

12:03 PM
Mac Harwood said...

By that argument - is a purely functional computer program subject to copyright?

Take, for example, a computer program for running a factory conveyor belt system.

Could I just copy someone else's computer program for my system .. since the computer program is entirely utilitarian? (It is firmware so there isn't a user interface - no visual aspects)

Surely, by that argument, no firmware can ever be subject to copyright.

So, for example, would I be able to setup a factory and churn out exact copies of Intel processors without worrying about copyright? After all - every iota of the processor is purely functional.

That's the mismatch I don't understand.

In my industry I take it for granted that firmware & Microprocessors are subject to copyright.

So why would a purely functional piece of firmware be subject to copyright ?

Thanks for the discussion - I'm learning a lot!

Mac

9:51 PM
Rebecca Tushnet said...

A computer program's functional features aren't protectable, nor are any features that are standard for that type of program; but a computer program is a literary work, not a useful article, so separability isn't the precise test. (However, there is a special law protecting chips against pure copying, though it is almost never invoked since it became quickly obsolete.) Instead, US courts dealing with software generally apply a test of abstraction of the various functions of the software, filtration of the nonprotectable components, and comparison of the ones that do exhibit creativity. Sufficient copying of the creative elements can be infringement of the copyright in the software. In other words, if you code a way to make your nonpatented widget creatively, anyone else can code to make the same widget, but they can't copy the creative elements of your code. But again: for useful articles, there's only protection for elements that are separable from the function, and there's nothing I can see that meets that standard in the Billy bookcase.

10:29 PM

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