I was on a panel at the Open Source Content Management Conference 3 at Harvard yesterday and attended the prior session. Both sessions (exempting my own embarrassingly how’d-he-get-invited performance) were rich in idea and information.

The first session I saw was on intellectual property. the panelists were Mike Olson (Sleepycat), Larry Rosen (OSI), Aaron Swarz (Creative Commons) and Liza Vertinsky (Wolf, Greenfield & Sacks), moderated by John Palfrey (Berkman Center). Quite a line-up. Most of the time was spent on Q&A. Among the points that struck me:

Joseph Reagle of the W3C asked if you can you copyright a DTD or schema. And if someone uses someone else’s DTD, is the resulting work a derivative work? Liza replied that the law around forms probably is relevant, and that you can’t copyright a form.

A Harvard Law School professor in the audience (I didn’t get his name, but he was terrific) said that the question reminded him of the Teddy Ruxpin case in which a provider of third party tapes for the semi-animatronic toy was sued for “contributory copyright infringement.” (The kids who stuck the tapes into the bear were the actual copyright infringers, apparently.) In fact, at the Illegal Arts festival (?), someone prepared a tape of William Burroughs materials for Teddy Ruxpin.

Reagle followed up by wondering if all documents created with Microsoft Word count as derivative works of Word’s XML schema.

Someone asked if it’s legal to scrape content and display it. Aron said that it’s legal to scrape. It’s less legal to display scraped content.

And (someone pointed out), there’s a difference between scraping up stuff marked for RSS feeds and just scraping what’s on the Web.

Dave Winer commented on this from the audience. He said that Radio Userland doesn’t have an option for turning off the RSS feed. “We wanted to promote RSS feeds. … A few times a user didn’t know it was producing and RSS feed and then saw his content on someone else’s site…Generally once they understand that it’s a feature of the software and it’s deliberate, the problem goes away.” But, he says at some point it won’t go away for someone.

Dave and Larry disagreed about the implications of casual copying, e.g., sticking a cropped photo from another source onto your weblog. Dave says it happens all the time, and not just with photos, and that’s just the way it is. Larry, getting all lawyer-y, agreed that it happens all the time but that there’s risk there. Aaron interjected that the Google cache and the Internet Archive may be massive copyright violations, but they’re so socially useful that they ought to be allowed to continue without prior restraint.

Then Charles Nesson (Berkman) asked a great, simple question: Has anyone ever tried to enforce the GPL?

No, it’s never gone to trial.

Liza: Because there’s no money in it.

Aaron: One reason is because the community is strong.

Larry: But I wouldn’t be surprised if someday a company the sized of Microsoft were to challenge the validity of the GPL.

Yikes! The validity of the GPL has never been tested in court. Ulp.

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