This morning The Daily Parker received a press release from Gary Christen, responding to my analyses of their lawsuit against the guys who maintain the Posix time zone database (here, here, and here).
Unfortunately for Christen, Astrolabe's response fails to rebut my central assertions. I said, essentially, they have failed to state a claim upon which relief can be granted by a Federal court (or, as one of my colleagues who actually practices law suggested, their complaint is actionable in itself). Their response doesn't make their original claim any stronger.
Christen seems at pains to make non-technical people feel better about the alarm we technical people raised regarding the likely effects of shutting down the tzinfo project. "Astrolabe has now done a careful reading of ... the various industry publications that broke this story on October 7," Christen claims, but if so it was a reading without comprehension. We technical folks got over our panic in about thirty seconds, in favor of outrage and scorn. And with their detailed, bullet-pointed release, Astrolabe systematically reinforces this writer's outrage and scorn.
Taking each of Christen's points in turn:
1. Astrolabe’s lawsuit is in no way intended to interfere with compilation of current time-zone information maintained by Mssrs. Olson and Eggert, or any other persons.
Read in the light most favoring the plaintiff, this is irrelevant. Read in the light of my office, it's false. Astrolabe's intent is irrelevant in any case; the tzinfo database contains historical and prospective time zone data because computers on occasion need to represent times and dates in the past. For that, and other technical reasons I'll get into in another post, "past" and "future" data can't be separated. Shutting down the tzinfo project shuts down the whole thing.
2. The aim of Astrolabe’s suit is only to enforce copyright protection for materials regarding historical time data prior to 2000. This does not affect current time-setting on computers, and it has little or no effect on the Unix computing world.
Taking the second sentence, time-setting isn't the issue; time display is; and if their suit survives a motion to dismiss (big "if"), it could have a crippling effect on time displays in the U.S. But the first sentence demonstrates nicely the fallacy of petitio principii (begging the question) concerning who owns the material in the first place.
3. The fact is that the historical time zone data compiled by ACS is protected by registered copyrights, first on its publication in book form as the American Atlas and the International Atlas, and later in electronic form as the ACS PC Atlas.
Gary, the data is not protected by copyright. Of course the books and the software are protected, which no one disputes. But the data—Gary, can't you understand the difference?
Let me try to help. Let's say the book has the sentence "In 1985, the U.S. passed a law that moved the first day of Daylight Saving Time from the last Sunday in April to the first Sunday." The tzinfo database distills from that sentence the following entry: "Rule US 1987 2006 - Apr Sun>=1 2:00 1:00 D". Does the database entry look, maybe, a little different? Can you start to see how the fact and its expression have different forms? No? Sigh.
The question of whether the material is “copyrightable”: has already been decided by the U.S. Copyright Office in the affirmative.
NO, NO, NO, you crashing ignoramus. Wow, either you got astoundingly bad legal advice, or ignored the advice you got.
The Copyright Office does not decide whether a work presented for registration is protected; it simply registers the work. All creative works have presumptive copyright protection at the time of creation. Copyright registration provides legal benefits in the event of infringement. But the Copyright Office makes no determinations at all on the validity of the copyright claim.
But "the material" in the tzinfo database is not subject to copyright protection, as Judge O'Toole is going to make clear to you in short order.
4. Why is the material considered copyrightable? Many hold the mistaken belief that all databases are mere compilations of fact, and are therefore not subject to copyright. However, compiling the ACS database went far beyond gathering official government data. In 20th-century America, particularly in the Midwest, time standards were a chaotic patchwork of not only state and local ordinances, but even of different time observances in the same jurisdiction.
Gary, the information expressed in the tzinfo database "is...considered copyrightable" only by Astrolabe, not, in fact, by Title 17, U.S. Code. And as your attorney should have told you, it doesn't matter whether the authors crossed fields of broken glass barefoot and rinsed the blood off with lemon juice in an effort to find the answer to the ultimate question of life, the universe, and time zones. Once the answer is out there, the facts are public domain. I can tell everyone I want that the answer is 42, and neither you nor the restless ghost of Douglas Adams can make a penny off me saying so.
5. Why did the ACS compilers bother to undertake this effort?
Having moved from petitio principii we move now to argumentum ad misericordiam, an argument to pity. No one cares whether you are curing cancer, leading us to eternal salvation, or as you suggested in your press release, you guys "are money-seeking parasites on society," all that matters right now is the nature of the material you claim to own.
6. Why is Astrolabe suing to defend this copyright? ... Astrolabe inherited the obligation to pay royalties on the Atlas to Michelsen’s widow and to the other principal compilers, who are now at retirement-age.
Oh my heavens, save the widows and orphans! It's irrelevant to your lawsuit, but it does fill me with emotion. Unfortunately, the emotion is disgust.
You blocks, you stones, you worse than senseless things, this lawsuit reduces the market for your book. The tzinfo database not only exhorts people to buy the books (thus creating the onerous obligation for you to give a few of your hard-inherited dollars back to the family of the guy who wrote them) but gives expression to the data the books contain such that the entire world can benefit from it. Given that computer software engineers, being logical sorts, generally avoid bunkum, the tzinfo database creates a market for the books that would never have otherwise heard of them.
Contrary to the accusations that it is trolling for dollars, it is not filing this suit in pursuit of vast amounts of cash. In the astrology world, there are no vast amounts of cash. The suit was filed in order to make Astrolabe’s concerns known to Mssrs. Olson and Eggert having not received a satisfactory reply to earlier phone calls and letters. Astrolabe has no wish to cripple the database on which Unix, Linux, Java and other computing depends.
Obviously you're not interested in money, because you would have named the U.S. government and the University of California as defendants if you were. (By the way, you need a new lawyer, or you need to listen to the one you have. Since Olson and Eggert maintained the tzinfo database in their official capacities as employees of those institutions, their employers will be joined in the suit eventually, and now you're up against a lot of really good attorneys. Good luck.)
But wait—you filed a Federal lawsuit to make a point? Because Olson and Eggert ignored your calls as any reasonable person would when some crank claims ownership of historical facts? And didn't you write earlier—right there, in the first bullet point—that you "in no way intended to interfere with compilation of current time-zone information maintained by Mssrs. Olson and Eggert?"
Finally, your conclusion:
In filing this suit, Astrolabe has touched the hot buttons on a number of highly emotional issues. One issue is the long-held right of people to receive money for their labors vs. the newer values of open sourcing, wiki and the other forms of the free information exchange that have made the internet so great.
No, you've touched on a well-settled legal issue. The people who labored on the work you're attacking didn't ask for compensation; they donated their time and efforts to the tzinfo project. Also, you, Gary, didn't provide any labor at all. You bought the rights at a bankruptcy sale. Think on what that says about your concerns for the widows and orphans, not to mention your noble purpose in filing this suit. Will you give all the cash flows from the sale of the ACS books directly to the creator's estate? No? Why not?
Another is the clash of paradigms between a mechanistic one unfriendly to astrology and a newer (and older) one that recognizes that the universe is far more mysterious than we thought.
The only reason people think it at all interesting you lot are astrologers is simply that it suggests you refuse to accept evidence as a way of understanding the world. If you want to live in your demon-haunted world and fleece people with similar beliefs, that's your right as Americans.
But filing a lawsuit in U.S. District Court inserts you into the reality-based community in ways I don't think you understand. Preach ignorance all you want; just not in Federal court.
Finally, I have to call out for special derision this bit:
[I]n answer to those whose outrage is increased by the fact that astrologers are the plaintiffs, we can only say that these detractors are uninformed. Uncritical recipients of the opinions of those who are higher in status than they are, they have obviously never experienced the power of astrology for themselves. Why astrology works is still a mystery, but as the prevailing paradigm morphs from 19th-century mechanism into one that has to embrace all the new things we are finding out about the universe, perhaps we will soon have a plausible explanation. Anyway, to those who know that astrology is bunkum and its practitioners are money-seeking parasites on society, all we can say is try to be a bit humbler and accept that the universe is far more mysterious than you imagine.
We aren't pissed at you because you're astrologers; we're pissed at you because you're stupid. Speaking only for myself, precisely my ability to think critically and my refusal to accept extraordinary claims without extraordinary evidence (from anyone regardless of status) lead me to conclude that this lawsuit is the work of children, who have neither the comprehension, the logic, nor the humility to realize their error in misusing the legal process in their tantrum. I don't wish you harm; I don't care whether your business succeeds or fails; but I do wish upon you and your attorney a Rule 11 dismissal with sanctions so harsh they're recorded in the stars for generations to come.