Development of Creative Commons licenses

["Greg London" <email AT greglondon.com>]

I think I figured out a metaphor that works here.

<metaphor>

Alice is a clock designer and writes a book that
gives step by step instructions on how to build
a pendulum clock out of balsa wood and a couple
of ball point pens for axles.

Alice can copyright her book and prevent anyone
from copying, distributing, or creating a
derived work of her book.

Bob discovers the book at a store and buys it.
He builds an actual clock using the step-by-step
instructions in the book and the templates
for how to cut the balsa-wood gears. He builds
the clock using the exact process described
in Alice's book.

Bob then sells the clock to Charlie.

Bob then decides that there's a lot of money
to be made in balsa-wood pendulum clocks and
sets up a sweatshop in a third world county
to crank them out by the thousands. He gets
several stores to carry his clocks. And he
becomes filthy rich.

Alice sues Bob for copyright infringement,
saying Bob's clocks are all derivatives of
her book.

Bob's lawyer then sends a polite letter
to Alice explaining that the expression
contained within her book is covered by copyright.
But for the mechanical design of the clock to
be protected under Intellectual Property law,
the design would have to be new and unique
enough to qualify for PATENT protection.

He then includes a photocopy of several patents
for mechanical pendulum clocks that are
hundreds of years old.

<end>
<analysis>

If Alice can prevent Bob from manufacturing her clock,
then Alice has patent-like powers that last about 120 years
or so. Worse yet, Alice gets patent-like powers over a
design that someone else had invented centuries ago. All she
did was express the same basic clock design in one book with
slight modifications.

If Alice's modifications are sufficiently new DESIGN
(i.e. she comes up with some new way to tell time via a
pendulum that had NEVER been designed before) then she
could apply for a patent and prevent Bob from selling
her clocks.

If the courts rule that Bob's clock is a copyright derivative
of Alice's clock and therefore subject to Alice's licensing
requirements, then patent law is pointless, because it can
always be trumped by a new expression of an old design.

The code on opencores.org is an expression of some
functionality, the way ALice's book is an expression
of the functionality of a pendulum clock.

If copyright law can be extended so that physical
implementations of verilog code are derivatives of
that code, then copyright law has just extended into
the functional-domain of patent law.

the verilog code is like Alice's book.
An ASIC is like Bob's clock.

The only way Alice could prevent Bob from putting
her verilog code into an ASIC is if her code
described some functionality that was new enough
to warrant a patent.

<point>

Patents describe something functional about the natural world.
A patent gives the inventor exclusive rights to that specific
functionality, regardless of how it is expressed.

Copyright works express something in language, they convey MEANING.
But the thing about expression is that there are many ways to
EXPRESS the same FUNCTIONALITY.

The point of a patent application is to make sure the applicant
isn't describing some old patent in some new expression. If you
express an old patent in new words, you cannot patent the function,
but you could still copyright the expression.

This is Alice's situation. She expressed some old functionality
in new ways. She wrote a book in her own words that describes
some old functionality. She cannot prevent the manufacture of
the thing she describes. But she can copyright her expression of it.

<disclaimer>

I am not a lawyer.
This could be completely wrong.
But if it is, things are much worse than I ever thought.