Two more for the copyright lawyers

Here are two more copyright law problems that I cannot solve:

1) SNTE is claiming copyright on an illuminated Eiffel tower in Paris, so that photographers are not able to sell pictures of that object without paying a license fee. How can SNTE claim copyright when they “created” their Eiffel tower lighting in 2003, whereas the Paris Hotel in Las Vegas already had the same lighting in 2002? Is this a simple matter of either infringement or licensing, or is some other aspect of the law involved?

2) Microsoft’s license to its proprietary networking protocols are too restrictive according to the European Union.

I have asked this on a dozen forums, but so far no-one has answered me: what “right” does Microsoft have to its protocols that a license is required to use them?

Are protocols copyrightable? (Where’s the expression?) Are they patentable? (How are they non-obvious?) Are they a trade mark? (This is the one that actually seems feasible to me.)

The strange thing is that though nobody can tell me what legal basis exists for Microsoft’s license, nobody is questioning that there is such a legal basis either.

The Microsoft webpage on this issue does absolutely nothing to make things clearer:

The [...] License Agreement [...] grants to licensees [...] a license under Microsoft European intellectual property rights for the purpose of interoperability with Microsoft client and server operating systems. Specifically, licensees will obtain the rights to use the licensed Microsoft technical documentation to develop implementations of the [...] protocols for the available server tasks enabled by the WSPP protocols that the licensee selects.

(Emphasis added by me.)

So Microsoft identifies two (types of) rights:

  • the Microsoft European intellectual property rights, and
  • the right to use documentation

Which law or jurisprudence established these rights?

Or, to put it differently, if I were to develop software using Microsoft’s protocols, what argument would the judge use to justify putting me in jail?

(The previous problem was: Why do works that are first published after the author’s death, still generate a copyright?. The answer to that was that authors can sell a work to a publisher under the condition that it won’t be made public until after the author’s death.)

2 Responses to “Two more for the copyright lawyers”

  1. Valentijn Sessink says:

    The “right” that MS claims to their protocols – isn’t. But the contract that you will have to sign is a really, really scary one. So if you’d develop software using MS-protocols on your own (as, for example, Samba does), there’s no problem at al. But! Once you get the official MS documentation to their protocols (a huge pile of shit that poisons your wife, burns your house and eats your children), you will have signed a contract to that. That contract is the “license” the EU thinks is too restrictive.
    Hence: yes, the word “license” is wrong, as there’s no licensing to it, it’s just contract law. But more and more these mere thoughts are seen as just another form of “intellectual property” (whatever that may mean, given the circumstances), hence you can “license” them. And yes, you’d be stupid to sign such a contract.

  2. Law News says:

    Thanks for the informative post

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