[ntpwg] RE: Reworded Algorithm Draft

["Yaakov Stein" <[e-mail]>]

Bill, 
 
I am cc'ing the list as I believe that my remarks may be of general
interest to the entire NTP WG.
 
I read through the updated version of the algorithms document that you
sent
and compared with
http://www.ietf.org/internet-drafts/draft-ietf-ntp-ntpv4-algorithms-01.t
xt.
 
In the following I am assuming that the latter is essentially the same
as the material
in the NTP book, and that the copyright of the book is held by the
publisher.
If either of these assumptions is incorrect, then the following analysis
may be as well.
 
My conclusion is that the edits, while definitely improving the
readability of the text,
(although I have technical questions about a few changes) 
do not change the potentially infringing status of the draft.
 
Let me explain why.  
 
When considering whether a given work infringes the copyrights of a
protected work, 
there are three main criteria:
1) a SUBSTANTIAL PART of the protected work must be copied
2) there must be OBJECTIVE SIMILARITY between the work and the protected
work
3) a CAUSAL CONNECTION must be proved.
 
The first criterion means that the work in question must copy all
or a large part of the protected work. That is why book reviews can 
reveal the contents and other authors can quote a passage or two
without infringing. In the present case the copying is clearly of a 
substantial portion of the protected work.
 
It is important to realize that the second criterion does not
mean word-per-word identity - the criterion is qualitative not
quantitative.
In fact derivative works, such as translations or plays based on novels,
do require the copyright owner's permission (they are specifically
designated by the Berne convention as part of the bundle of exclusive
rights).
It would be up to a court to decide in a particular case, 
but in the present case it is clear that there IS objective similarity
(in fact, it is so similar in purpose, structure, and content
that I wouldn't even classify it as a derivative work).
 
Causal connection means that the author of the work in question
usually needs to have seen the protected work and to have based his work
on it. There are loop holes in both directions here, in some
jurisdictions
making an architectural plan from a building would be infringing the
copyrights of the original plan, even if the draftsman never saw the
original plan. In the other direction there is a defense of subconscious
copying 
if the author saw the protected work in the past but it was not before
him
while writing the new work, and he claims that he did not realize that
he was copying. In the present case we have a clear email trail
establishing 
that the draft author had a copy of the material before him and based
his draft on it.
 
Now there is a strong defense that I need to mention.
If it is claimed that C is a copy of protected work B, 
C's author can show that in fact both are copies of an earlier work A
(assuming that A is in the public domain or C's author
has received permission to use A).
In the present case I had hoped that the new draft and the book
were derivative works of the NTP C-code (which I am assuming
is in the public domain, or alternatively that the author would
grant us permission to make a derivative work based on the code).
Unfortunately, this does not seem to be the case here.
 
So I am afraid that the proposed draft version is no better than
the previous one in this regard. You should take into account
that copyright protection extends to expressions but not to ideas 
or mathematical concepts, and thus it is perfectly possible to write a
draft
detailing the algorithms WITHOUT infringing the rights of the publisher.
But such a work must start from public domain sources or 
from sources for which rights have been granted to the IETF. 
 
Y(J)S