woodwojr wrote:

Mm. You're correct, by my reading of this opinion, I take it back. Nevertheless, reordering would not be difficult (even though it might make Paddy sad).
~J

Right, that's the case I was thinking of.  And, like you said, making a version with an all new ordering would avoid the copyright problem very nicely.

I'm actually sympathetic to the question from the original post, though.  I've definitely found that, now that I'm past the first 500, I depend on RevTK much more than I depend on the physical book.  I don't begrudge Heisig the money I spent on the book, but I think RevTK is what will enable me to actually learn all 2042 kanji.  I don't really know what the solution to that is (if any).

Actually, thanks to the book, I just realized I've been using the wrong stroke order for 耳 for over 15 years.  Whoops.

Since this site is meant to work with RtK, I wouldn't even mind seeing the site go private, and be accessible only by means of a CD included with the book, which would generate the key for access. Of course hacking is always possible, but that'd be one way to solve all the problems and reward both for putting together great resources.

I think sfekas is right. Unfortunately we're in the grey area of copyright here. You can copy and use information out of one creative work to make another.  Infringement depends on the degree to which you copy rather than create independently.

I recently discussed the issue of fan fiction with a friend of mine who is an attorney and he said that using someone else's setting to make up your own story isn't necessarily infringement, but it is close and can be if you make substantial use of the original author's plots, characters, etc. However, an original author has been sued for copying a fanfic plot too!

Like sfekas, I'm not a lawyer, but I'd be confident that a work such as a web site that reproduces the kanji in the order in which Heisig determined, with associated keywords that he carefully chose, is pretty much a derived work and in theory Heisig could sue. If that web site also copied enough other information from the book to make the book unnecessary (such as listing the primitives assocaited with each kanji), then that would be a good case for a lawsuit. However, as it constitutes a useful aid that supplements and encourages purchase of the book, I would say that it is a case where it is in Heisig's interests not to sue even though he could.

heheh.  I applaud woodwojr's attention to detail.  Disclaimers are very important to us lawyers.  :-)  (I actually haven't been a lawyer that long.  Hopefully I can avoid letting it completely take over my brain.)

Anyway, I probably should add that I really don't think there's a problem here.  The site is clearly a (very good) supplement to the book, but it's not attempting to replace it.  Personally, I think it makes the book more valuable by providing a support structure.  Sadly, fair use is always a little fuzzy.

Like woodwojr, I personally wouldn't want to see the site move to restricted access, either, but it's probably a non-issue given the publisher isn't involved in this site at all.

[Disclaimer deleted to avoid being even more pretentious that I was yesterday.]

rich_f wrote:

Heisig could have patented the method if he had wanted to, but the patent would have long run by now, and of course now it's way too late to file for one.

You really think so? I'll grant not having a deep familiarity with the patent law environment of the what, late '70s?, but I'm not sure I've ever seen something like this, completely lacking any sort of technical basis, application as a business method, etc. (not to mention being an application of, again, a several-thousand-year-old technique), being granted a patent.

That could, of course, be for lack of looking--any citation indicating that this sort of thing would be patentable?

And if you look at the book, he has tables listing the kanji in his order in the back. That alone is enough to make a claim for copyright infringement by reproducing his table.

Although the order may indeed have enough of a creative element to it to be separately copyrightable, the existence of the table is not relevant to this. Reproducing his table, copied right out of the book, would be infringement. Producing another table using the same order is only infringement if the order itself or its contents are subject to copyright.

But since ファブリス got permission from Heisig, this is all pretty much a non-issue. Don't borrow trouble-- it'll find you when it needs to.

Ah, is that true? Is it in writing?

(Not that it matters that much, I'm just curious)

If you're always prepared to walk away, you'll never lose.

Only with good information

(Ah, game theory)

(Despite being in the same thread as, now, two self-professed current or former lawyers, I'm still not one, and this still isn't legal advice.)

~J

woodwojr wrote:

I at least would be pulling my content from the site if there was a move to make the site and all of the user-generated content simply a value-add for someone else's commercial product.

Seems to me that's what this site already is! Of course there is no relation between these entities, but one can dream that both could be rewarded and work in tandem. Used together, RevTK and RTK are a killer kanji 1-2 punch.

You can patent all sorts of things. Business practices, etc. The one-click on Amazon.com? That's protected by a patent. It's not a software breakthrough of any sort-- it's a business model.

All sorts of ridiculous things are protected by patents now. Theoretically, he could have patented a system of Japanese language education if he had really wanted to. The downside of patents, though, is that they don't last too long compared to copyright, but they do give you a complete monopoly for a some time. (I think it's about 20 years now.)

The tables in the back are still copyrighted information, and reproducing them in any form without permission (or without a safe harbor in the law) can make the offender liable for damages. You might think it's a stretch of an argument, but you don't want to gamble your livelihood on that, because if you lose, you lose big.

Now the really important thing with copyright is REGISTRATION. Yes, if you write a book and don't register it, a right of copyright is instantly created, HOWEVER, that right is controlled by the state you reside in, for the most part, and your damages are limited to whatever the STATE statutes say. (Usually not much. In NC, you have to prove actual damages-- that is, I actually suffered $X worth of damages.)

If you register your copyright with the US Government, you get the full life of the author + a bunch more years deal (Edited because I forgot just how many years it goes on...just ask Mickey Mouse and you'll get an idea.). You shift the jurisdiction to the federal courts, and even more importantly, you get statutory damages as set out in the federal statutes, and those damages are very high indeed. There's NO burden of proof that you've been damaged. You simply must prove infringement. Copyright infringement damages are high, and they get higher with each infringement. It's nasty business.

There are (shrinking) safe harbors, but it's best to ask for advice before proceeding. Because in this case, it's NOT better to ask for forgiveness after the fact. Another part of intellectual property law is that holders of intellectual property rights have an obligation to chase down infringers, or they can LOSE their copyright/tradmark/patent. A good example is how Xerox and Kleenex fought to keep their logos out of the dictionary as words. If they had let their brand names become common words, they would have lost their trademarks, and anyone who made "facial tissues" could call them Kleenexes. (Scumco's box of 200 kleenexes!) or (Scumco's xeroxing machine!) had to be prevented.

Same goes for copyrighted ideas or inventions. If you get a patent, you have to defend it, or else the you cede control of it to the public domain. And so on.

I'm not judging the good/bad of it, just telling you how it works. And all of these IP rights are protected internationally through treaties. (The Berne Convention, if you must know, and the WIPO controls it. World Intellectual Property Organization.)

Naturally, this is the state of IP law the last time I looked at it... which was about 10 years ago. So disclaim disclaim, blah blah, this isn't legal advice.

But like I said, it's all moot here.

Last edited by rich_f (2008 July 08, 1:30 pm)

No, while Berne doesn't require registration, in order to get *statutory damages* in the US-- up to $300k per infringement -- you must register. But it's so easy to register, and the protection is so much better, that you'd be stupid not to.

I haven't had a chance to look into the lapse of copyright due to failure to prosecute (like I said, it's been over 10 years), but I know the doctrine exists for trademarks.

That said, the US system rewards copyright holders who do chase down all offenders. (See above-- $150k-300k per infringement for serious cases.) If you were a copyright holder, you'd be stupid not to. It's free money.

The copyright term is now ridiculously long. Life +70 years, or creation date + 95/120 years, depending.

Either way, it's nuts, and somewhat broken.

rich_f wrote:

All sorts of ridiculous things are protected by patents now. Theoretically, he could have patented a system of Japanese language education if he had really wanted to.

I certainly agree that there are things patented now which, at least to the level that I've inspected them, appear to be ridiculous (as patentable things). However, I still haven't encountered anything quite to the level of patenting mnemonics; I'll admit I'm committing the hideously dangerous act of presenting an argument from incredulity as a non-expert, but without seeing something similar that was granted patent protection I'm not sure I can believe that such a patent would have been granted.

The tables in the back are still copyrighted information, and reproducing them in any form without permission (or without a safe harbor in the law) can make the offender liable for damages.

Reproducing them. Copyright doesn't cover the idea of a table; it covers Heisig's specific table. Generating a new table that contains the same information as Heisig's table would not, by itself, be infringement; in this case it's the content of the table that could be dangerous.

You might think it's a stretch of an argument, but you don't want to gamble your livelihood on that, because if you lose, you lose big.

I gamble my livelihood on it every time I make a table that contains information that other people have put in a table; doing otherwise would make it difficult to present information in a well-organized manner.

If you register your copyright with the US Government, you get the full life of the author + a bunch more years deal (Edited because I forgot just how many years it goes on...just ask Mickey Mouse and you'll get an idea.).

70.

Another part of intellectual property law is that holders of intellectual property rights have an obligation to chase down infringers, or they can LOSE their copyright/tradmark/patent.

I mean this next part with all respect:

NO! No no no no no! The "protect or lose" quality is unique to trademarks. Neither patents nor copyright possess anything of the sort, though demonstration of knowing failure to prosecute certainly seems like it could be used to attack an estimate of damages incurred--whether successfully or not I don't know, I haven't seen any case law on the subject.

Same goes for copyrighted ideas or inventions. If you get a patent, you have to defend it, or else the you cede control of it to the public domain. And so on.

As just mentioned, this is completely wrong. Again, with all due respect.

Naturally, this is the state of IP law the last time I looked at it... which was about 10 years ago. So disclaim disclaim, blah blah, this isn't legal advice.

Still no offense, but it hasn't been the case during any time since 1990 (which is about when the start of the period I've studied is), and I'd venture the opinion that it hasn't ever been that way in the US.

The fact that this discussion is primarily academic appears to remain true

(Not a lawyer, not legal advice. Not medical advice either. Possibly gardening advice.)

~J

Ah, apparently you did. That's what I get for starting a post one day and finishing it the next :oops:

Regarding the tables, the original quote was:

And if you look at the book, he has tables listing the kanji in his order in the back. That alone is enough to make a claim for copyright infringement by reproducing his table.

But reproduction of the table wasn't the discussion. The order is already inherent in the book itself. If the order is a creative work subject to copyright, then producing any ordered presentation using the same order without clear evidence of independent invention could be judged infringement. The existence of a table at the end which puts it in concise format does not create the order.

There's also some ambiguity involved in "reproducing his table", which I initially understood to mean "copying his specific table, including order, column order, spacing, and every other significant mechanical detail", which would be potentially infringing even if the order is not subject to copyright (since any nontrivial typesetting would be so subject). If you meant more generally "any table containing the same information in the same order", the structure of the table itself and its typesetting would be the new creator's work, not Heisig's, so any potential infringement could only stem from copyright applying to the contents of the table.

Despite my incessant debating of minutia, I'm still not a lawyer, and this is still not legal advice.

~J

My first inclination is that that's rather more specific than could be said of the mnemonic system in RTK, but among other possible reasons for that it could be because I'm looking at an enumeration of claims here, whereas for the system used in RTK I, a layperson, am simply trying to imagine what the claims might be.

Either way, food for thought, thanks.

~J

You guys are killing me!  Don't you know I should be studying instead of talking about IP law in my spare time??  :-)

Actually, wood had done an excellent job of explaining the state of the law, so I don't really have much to add to it.  Just that the real lesson of this site is that it's better if people are friendly and polite and try to meet each other halfway, rather than getting caught up in whose rights are stronger.  Happily, both sides (Fabrice and Heisig) managed to make that work. 

Now, back to the kanji - I think I'll pass 1000 sometime in the next week.