Copyright Question
October 15, 2005 4:17 AM   Subscribe

A project of mine has inovlved me creating a number of Sudoku puzzles. What is my position with regards to copyright? I have created, from scratch, a program that builds Sudoku grids. I don't actually build the grids myself, my program does. Do I still hold copyright on the generated grids?

http://vanhegan.net/sudoku/

This question has been going round for a while, and seems that the answer hinges on wether or not a Sudoku is considered a creative work, or wether a computer generated sudoku is a creative work, moreover if it is a work of the program's author. Being that I wrote this program, and I'm using it to generate the puzzles, might this be an exception?

The reason I might want to enforce copyright is purely to stop somebody scraping my site and using the hundred thousand or so puzzles to sell on for profit. I have no problem with individual reprinting puzzles, provided they give attribution to me.
posted by gaby to Law & Government (22 answers total)
 
The legal issues are very tricky, and no one will be sure until it comes up in a court case. Still, if they're not copyrightable you can't do anything about it, so why not just slap on a huge copyright notice and act as if they are copyrightable? It might not be entirely morally/ethically/whateverly right depending on how you view these things, but just wildly claiming copyright on things that are uncopyrightable or public domain is all the rage these days and I don't see how it could be illegal.
posted by fvw at 4:30 AM on October 15, 2005


I do know that there is a guy who wrote software to create crossword puzzles. Instead of releasing the software he has a number of newspapers sign up for his service.

His software is copyrighted (but not released). The puzzles his software generates is copyrighted as a creation of his.
posted by filmgeek at 4:56 AM on October 15, 2005


IANAL.

You can copyright the specific representation of the puzzle. (I think copyright law uses a fancy term for this like "fixed in a medium".) So you can most certainly copyright an image of a puzzle, or the textual HTML code that describes a puzzle, or whatever format you represent the puzzle.

But you can't copyright the actual factual information of the puzzle. You can't prevent someone from looking at your site and then using the information of the locations of the numbers for whatever purposes they want (provided they don't actually use the html or images on your site.)

So the question then becomes, what if they write a spider that hits your site and gathers that information through screen scraping, and repurposes it but doesn't actually do so by copying the html / images / whatever. Because they haven't actually copied a work (just facts) you can't use copyright law to stop them from using that information.

However, in order to obtain that information their spider had to fetch your webpage's html, and that is a tangible work of which you control the copyright. So I suppose you could make the conditions of copying the page (and by copying, I mean fetching it from your server just as anyone would when viewing the page) that they may not use it in conjunction with an automated spider.

But all of the above is the theoretical view of things. I would say that realistically you should use technical means of preventing spiders (robots.txt, deny access to user-agents that don't look like browsers, ban addresses that request many pages in a short time period, require a cookie, etc.) You can also use the threat of copyright infringement to try to bully someone that has spidered the site, but I wouldn't expect it to ever get close to a court - and if it did you would have a rather hard case to make (given the above.)

But I'm no lawyer, so take all this with a grain of salt.
posted by Rhomboid at 5:08 AM on October 15, 2005


There appear to be two issues: are Sudoku puzzles eligible for copyright and, if they are, who holds the copyright if a Sudoku puzzle is computer generated?

I don't know enough about Sudoku puzzles to definitively answer the first issue. However, if all legal Sodoku puzzles of a particular size can be represented by a finite sequence and generated by a mathematical formula I believe that strongly suggests that Sodoku puzzles are a mathematical concept and thus not eligible for copyright. If a database of Sodoku puzzles is just a database of facts, your website can claim copyright in the artistic presentation of the puzzles (the HTML and such) but not on the puzzles themselves, similar to the way copyright is limited for a phonebook. You could prevent someone from scraping your web site and putting up a clone, but you couldn't prevent them from reproducing the puzzles if they copied the construction of the puzzles but used a presentation entirely of their own design.

If we assume that Sudoku puzzles are eligible for copyright, then the issue of who holds that copyright is in question for computer generated Sudoku puzzles. Several years ago the Duke Law & Technology Review published an article on point, namely Copyrights in Computer-Generated Works: Whom, If Anyone, Do We Reward?. I am unaware of copyright case law on this question, but under the analysis in the article, you would appear to fulfill the role of both computer programmer and program user (since you used your own program to generate the puzzles on your web site) and your computer would not appear to itself eligible to hold copyright protection. Thus, if Sudoku puzzles are eligible for copyright, you are the copyright holder.
posted by RichardP at 5:24 AM on October 15, 2005


fvw wrote: why not just slap on a huge copyright notice and act as if they are copyrightable?

If Sudoku puzzles are ineligible for copyright, you could indeed get away with that with little or no chance of any repercussions. However, what if Sudoku puzzles are copyrightable? Gaby says he makes about 100,000 available from his website. If Sudoku puzzles are copyrightable, it seems possible that someone might already hold copyright on one or more or more of those puzzles. Claiming copyright in a work in which someone else is the true holder of copyright would make one vulnerable to a "slander of title" lawsuit. Probably a remote concern in this case, but it is a theoretical issue.
posted by RichardP at 5:40 AM on October 15, 2005


IANAL (just a law student)

fvw is correct that the issues presented are rather tricky. I cannot give you direct advice on this topic. But think upon these questions:

If you copyrighted the puzzles and someone then stole them, I think you would end up spending a LOT of money litigating the issue (by a lot I mean tens of thousands of dollars). Are you willing spend this much money suing someone for copying a puzzle? Why or why not?

Because these puzzles can be computer generated, and because there is a limited universe of puzzles, who's to say that someone out there hasn't already generated every possible Sudoku puzzle and copyrighted it? Should the first person to harness enough computing power and time be allowed to do this? Even if this hasn't happened yet, it is entirely possible that two different computer programs could produce similar or identical puzzles. What if you got sued tomorrow by someone claiming that you "stole" their puzzle, when in fact your program generated it? What would your argument be in response?
posted by falconred at 5:41 AM on October 15, 2005


Second RichardP's link to the Duke article. Go read it now, if you haven't already. The answer to the question is not at all clear, but the article at least clarifies what the issues are, and what previous case law may apply.

One important point to note is that for a work to be copyrightable, some amount of creativity must go into the work. The bar for what constitutes creativity is very low, but it is still nonzero. Assuming that Sudoku puzzles are copyrightable (which, as others here have noted, is itself an unanswered question), you'll have a stronger claim to copyright if you, for example, go through a thousand Sudoko puzzles your program has generated and pick out what you think are the "best" five hundred puzzles, and published only those, than you would if you indiscriminately published a thousand puzzles your program had created. Also note carefully I am not saying that the collection of five hundred selected puzzles definitely would be copyrightable, nor that the "data dump" of one thousand puzzles would not be copyrightable. Only that you have a better case for the former than for the latter, as choosing the "best" puzzles by hand would likely pass the low bar for creativity. IANAL.
posted by DevilsAdvocate at 6:21 AM on October 15, 2005


I wrote a companion solver to give each puzzle a difficulty rating, which is subjective according to how I configured and wrote the siolver, so there is some aspect of creativity in the process. Research does indicate that there is indeed a finite universe of puzzles, so it's not impossible that some other program/person may have generated the puzzles before.

I suppose having a copyright notice along the lines of:

All content copyright Gaby

Is sufficiently nebulous to make me feel better about it. Would something more specific by appropriate? I very much doubt this would ever get tested in a court, I just don't want anybody abusing all the effort I've put in to this.

Besides, anybody could generate any number of puzzles using any number of free tools. So I suppose all I'm copyrighting is the layout of the website, and the stylistic presentation of the puzzle, rather than the actual layout of numbers.
posted by gaby at 8:08 AM on October 15, 2005


From comparisons to phone books and cookbooks, I believe that you can't copyright an individual puzzle, but you can copyright the collection and the presentation of the collection.
posted by alms at 8:30 AM on October 15, 2005


IANAL but I think you've got the wrong definition of creative. "Creative" is not a value judgement in this case. The puzzles you generate did not exist before and now they do -- they have been created. You were the one using a tool to make them -- you created them. The computer is just a tool like a paint brush or a typewriter.

Whether you are being creative when you use this software (or when you throw a bucket of paint at a canvas, etc.) may be controversial if you're talking about the philosophy of art, but not if you're talking about copyright law.

OTOH, I'm pretty sure that the name "Sudoku" is a registered trademark.

The Sudoku-type puzzles in the newspaper always have a copyright notice.
posted by winston at 9:35 AM on October 15, 2005


If Sudoku puzzles are copyrightable, it seems possible that someone might already hold copyright on one or more or more of those puzzles. Claiming copyright in a work in which someone else is the true holder of copyright would make one vulnerable to a "slander of title" lawsuit. Probably a remote concern in this case, but it is a theoretical issue.

Actually, two people can independently create the same work and both would be protected by copyright in it's author.
posted by reverendX at 9:38 AM on October 15, 2005


If Sudoku puzzles are copyrightable, then they would be derivative works of the software, I would think. And since you own the copyright on the software, you would own the copyright on the resulting puzzles.
posted by kindall at 9:44 AM on October 15, 2005


Because these puzzles can be computer generated, and because there is a limited universe of puzzles, who's to say that someone out there hasn't already generated every possible Sudoku puzzle and copyrighted it?
That depends on your definition of "limited." By my rough calculation, there are about 10,000,000,000,000,000 possible Sudoku puzzles. I'd say that's several billion times more possibilities than there are original plots for novels :-)

AFAIK, copyright (unlike patents or trademarks) does allow for two people to come up with the same idea independently and both have a valid claim (but not against each other). To claim copyright infringement, you have to prove that the other person was aware of your work.
posted by winston at 9:47 AM on October 15, 2005


The reason I might want to enforce copyright is purely to stop somebody scraping my site and using the hundred thousand or so puzzles to sell on for profit

Have you considered technological barriers? For example, you might restrict any given IP address to no more than 10 puzzles per day.
posted by WestCoaster at 5:42 PM on October 15, 2005


It seems to me this is a similar issue to the question of whether passwords/keys for software fall under copyright law. They are specific random numbers created by computer algorithms, and their creators (software companies) want them to be protected from being copied nilly-willy.

Perhaps you can find a clearer answer if you look at the legal questions pertaining to that topic.
posted by McIntaggart at 5:44 PM on October 15, 2005


If someone else can't scrape your site, they can still write their own short program that could generate the same puzzles[1]. To my non-legal mind, this says that (1) even if you want to stop someone else from duplicating your site, you probably can't; and (2) even though a court might let you enforce copyright on your program's output, they probably shouldn't.

1. Okay, if your program is sufficiently random, then they won't be able to generate the exact same puzzles. Somehow this doesn't seem like it changes the essence of the situation.
posted by mbrubeck at 7:04 PM on October 15, 2005


McIntaggart - passwords and keys probably do not fall under copyright law. Narrative works must be of a sufficient length, and cannot be single words or phrases; protecting such short works is the province of trademark. But passwords and keys most likely cannot be trademarked because they are not indications of source, or even if they are, might be deemed "functional". You best bet for suing someone for sharing a password or key would likely be based on either a contract (like a EULA) or trade secret law.

[not trying to pick on you, just clarifying]
posted by falconred at 1:39 AM on October 16, 2005


All I ever do on MeFi is derail, but I feel that your basic concern --
The reason I might want to enforce copyright is purely to stop somebody scraping my site and using the hundred thousand or so puzzles to sell on for profit.
is overblown. What makes your sudoku software any more appealing or profitable than any of the other 6 million implementations of sudoku?
  1. Since there are existing sudoku generators under the GPL, anyone seriously trying to make a profit would do a little bit of diligence and use a source that unambiguously gave them the rights to distribute the puzzles -- and so, i.e., not yours with your fuzzy claim of copyright on the output of your program;
  2. Anyone who can't be bothered to do this diligence is probably also going to fail at making a profit and so not be in any way benefiting from your work.
This doesn't really address your copyright question. But it is intended to help you understand that you don't need to do the pernicious overreaching that is "all the rage these days."
posted by xueexueg at 9:44 AM on October 16, 2005


Since there are existing sudoku generators under the GPL, anyone seriously trying to make a profit would do a little bit of diligence and use a source that unambiguously gave them the rights to distribute the puzzles -- and so, i.e., not yours with your fuzzy claim of copyright on the output of your program

Sorry for the further derail, but can you point me such a program? I had downloaded sudoku and found it to be a wonderulf and interesting procrastination aid. I've been procrastinating since then in deciding whether or not to shell out $15 for it.

Is there some other sudoku genderating software that's free? I just did a quick google and tucows search and didn't find anything.
posted by duck at 10:35 AM on October 16, 2005


On freshmeat there are two programs, GNOME Sudoku and ksudoku, as well as a Java library for coding your own. The wikipedia page for sudoku also has GNUDoku

But if you're searching Tucows maybe you don't run something that could easily run GNOME or KDE; I did find this for OS X which may be just a solver: sudoku 1.0. There are three Dashboard widgets and all appear to be they're proprietary "Freeware," but hacking their code to run in another browser [Dashboard widgets are just DHTML] would also be easier than screenscraping gaby's site, especially with since it would be easy to throttle someone who was downloading 100,000 puzzles.

It looks like there's not really anything GPL for Windows. That's odd. It shouldn't be that hard to port any of the 3-4 GNU/Linux versions to anything else; oh, here's a J2ME version for your mobile phone, which says it's GPL: MSuDoKu
posted by xueexueg at 5:59 PM on October 16, 2005


Here's a Sudoku generator in Ruby which I presume you could run on Windows.
posted by xueexueg at 6:04 PM on October 16, 2005


I see one issue that sets Gaby's puzzles apart from randomly generated puzzles. Gaby's have been analyzed to determine a level of difficulty. To my mind, this sets them well above randomness.

Thanks for the post, Gaby. Fascinating legal discussion, fun puzzles :-)
posted by Goofyy at 9:15 PM on October 16, 2005


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