Re: Qt/Embedded
on Fri, Nov 17, 2000 at 10:53:23PM -0500, Eric Jacobs ([EMAIL PROTECTED]) wrote:
On Fri, 17 Nov 2000, David Johnson wrote:
On Friday 17 November 2000 01:20 am, [EMAIL PROTECTED] wrote:
The idea is that, if a program is a work, and if (as the courts
have held, in Mai v. Peak) a program in memory meets the fixed and
tangible requirements of copyright law, and is therefore a copy
under copyright law, then a program linked to a library at runtime
is a derivative work.
I don't see how this follows.
You don't see how what follows? That linking is a corrolate of Mai v.
Peak, or the principles established in Mai v. Peak?
I've heard this before, but I've always dismissed it as hearsay. I
will have to look up Mai v Peak. The implications of this are
mind-boggling! Does Stephen King have rights to my brain because
I've read his books and they're now in my memory?
If that is what the license requires, then yes.
Barring substantive legal foundations for that conclusion, I'm afraid I
remain unconvinced. However, a claim to programs in computer memory is
pretty much what Mai validates, for licensed software.
Mai v Peak establishes that because a computer program has to be
copied to memory to be used, one can be guilty of copyright
infringement merely by using the work.
If one is not the "the owner of a copy" of a program.
If you are the owner of a copy, your rights to produce this in-memory
copy are addressed by 17 USC 117. If not, my understanding is that the
rights must be granted under the licensing provisions of the software,
or made available through one of the limitations on exclusive rights.
The court did not seem to cover Section 117 of Title 17 very
thoroughly and it seems to me that similar cases could argue under
117(a)(1) especially.
Opinions vary. I'd say the court considered 117, though. Specifically:
The law also supports the conclusion that Peak's loading of
copyrighted software into RAM creates a "copy" of that software in
violation of the Copyright Act. In Apple Computer, Inc. v. Formula
Int'l, Inc., 594 F.Supp. 617, 621 (C.D.Cal. 1984), the district
court held that the copying of copyrighted software onto silicon
chips and subsequent sale of those chips is not protected by 117 of
the Copyright Act. Section 117 allows "the `owner' 5 of a copy of a
computer program to make or authorize the making of another copy"
without infringing copyright law, if it "is an essential step in the
utilization of the computer program" or if the new copy is "for
archival purposes only." 17 U.S.C. 117 (Supp. 1988). 6 One of the
grounds for finding that 117 did not apply was the court's
conclusion that the permanent copying of the software onto the
silicon chips was not an "essential step" in the utilization of the
software because the software could be used through RAM without
making a permanent copy.
...
We have found no case which specifically holds that the copying of
software into RAM creates a "copy" under the Copyright Act. However,
it is generally accepted that the loading of software into a
computer constitutes the creation of a copy under the Copyright Act.
See e.g. Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th
Cir. 1988) ("the act of loading a program from a medium of storage
into a computer's memory creates a copy of the program"); 2 Nimmer
on Copyright, 8.08 at 8-105 (1983) ("Inputting a computer program
entails the preparation of a copy."); Final Report of the National
Commission on the New Technological Uses of Copyrighted Works, at 13
(1978) ("the placement of a work into a computer is the preparation
of a copy"). We recognize that these authorities are somewhat
troubling since they do not specify that a copy is created
regardless of whether the software is loaded into the RAM, the hard
disk or the read only memory ("ROM"). However, since we find that
the copy created in the RAM can be "perceived, reproduced, or
otherwise communicated," we hold that the loading of software into
the RAM creates a copy under the Copyright Act. 17 U.S.C. 101. We
affirm the district court's grant of summary judgment as well as the
permanent injunction as it relates to this issue.
http://laws.lp.findlaw.com/9th/2/991/511.html
Even under the conclusion of Mai v Peak, the effect on the GPL would
be to require users to proliferate "written offers" (or copies of the
source code) and "prominent notices" of modifications (if the program
is modified) throughout their computer's RAM and other temporary
storage locations as they are operating a GPL'd program.
No. GPL specifically provides this right, or rather, doesn't deny any
rights necessary to run a program:
Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope. The
Re: Qt/Embedded
on Fri, Nov 17, 2000 at 10:44:39PM -0800, David Johnson ([EMAIL PROTECTED]) wrote: On Friday 17 November 2000 09:41 pm, [EMAIL PROTECTED] wrote: The legal test of copyrightability (what is copyrightable) is "original works of authorship, fixed in a tangible medium" [1]. Or at least the second part of that. This seems to be a different issue. Those are good attributes for what can be copyrighted. But it doesn't follow that they are necessarily the same attributes for what can be regulated by the copyright holder. One specific example is a movie. The author can restrict how a movie is shown, even if it is displayed fleetingly on a movie screen, failing the "fixed" attribute. Film and video qualify. Performance is an exlusive right. Okay, what am I missing here. Something is not following... First you say that the copyright holder can restrict software in RAM because it is "fixed in a tangible medium". But you referenced a phrase that seems to apply to "copyrightability". So I questioned this by giving the example of film and video "display", which in not fixed in a tangible medium (the celluloid is, the transient images of light are not). Copyright in film is conveyed by fixation in celluloid, video, digital, or other form. The film is protected by copyright. One of the exclusive rights under US law is that of public performance. Read the law, I'm not going to explain it to you paragraph by paragraph. Then you switch over to performance! No, you switched to movies. I responded, briefly, identifying the missing links of your argument. Perhaps I don't understand the word "copyrightability". I assumes it to mean "a work that can be copyrighted." See the reference two posts prior to the US Library of Congress Circular on copyright, including a discussion of what is copyrightable. So, apropos to the original question: does the GPL restrict dynamic linkage because it makes a derivitive work in the user's RAM? (the electrical states in a RAM chip being classified as "fixed in a tangible medium") Or does it restrict dynamic linkage because it is a performance? Or does it restrict it because the user has entered into an agreement with the author (which would be binding regardless of copyright law)? Derivative work in RAM, with, as I understand, an argument of "contributory infringement" being made for works which are distributed as object plus libraries. I'd be more comfortable hearing from the lawyers here (Larry, you awake?). -- Karsten M. Self [EMAIL PROTECTED] http://www.netcom.com/~kmself Evangelist, Zelerate, Inc. http://www.zelerate.org What part of "Gestalt" don't you understand? There is no K5 cabal http://gestalt-system.sourceforge.net/http://www.kuro5hin.org PGP signature
Re: Qt/Embedded
on Sat, Nov 18, 2000 at 06:46:01AM -0500, Eric Jacobs ([EMAIL PROTECTED]) wrote: On Sat, 18 Nov 2000, [EMAIL PROTECTED] wrote: I don't see how this follows. You don't see how what follows? That linking is a corrolate of Mai v. Peak, or the principles established in Mai v. Peak? That linking has anything to do with Mai v. Peak. You and David are chasing the same rabbit. You're running in the right direction... See my response to David. While I'm not entirely clear on the logic, my understanding is that, if the code plus linked libraries in memory is a derivative work (we'll take this as given for the moment, and fight about it later if we need to), then a special circumstance arises when a system is shipped with disaggregated code plus libraries, with the intent that, at runtime, the user create the combined derivative work by running the program. The user's act would appear to be allowable under 117. The argument I think I've seen used is that the party shipping the combination of code is necessitating an infringement of the terms of the GPL. As this isn't the party running the code, or the owner of the copy, they wouldn't be afforded the same 117 exemption. Maybe. This has been hashed out in gnu.misc.discuss many times, I may try digging through archives. A search earlier tonight through Google on "GPL link layer boundary copyright" turned up results but nothing meaningful. ... Whether "a program linked to a library at runtime is a derivative work" is a different question. The answer is unambiguous: it's a derivative work. Whether or not it is a *protected* work is another question. Given the vagueness of the statutory definition of "derivative work" in 17 USC 101, I can hardly agree that the answer is unambiguous. I disagree: A ``derivative work'' is a work based upon one or more preexisting works, such as [list ommitted] or any other form in which a work may be recast, transformed, or adapted. (17 USC 101) The GPL states: "... a 'work based on the Program' means either the Program or any derivative work under copyright law; that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language." (Section 0, GNU GPL v 2). A program linked to a library at runtime would not be a derivative work (because it does not contain the library or a portion of it.) You're aquainted with how a linker works? It's the linking of object code plus libraries which creates the machine-code executable. For a dynamically linked program, this step occurs at runtime. The runtime executable *does* contain, in machine code form (see above WRT derivative works), the referenced portions of the library. -- Karsten M. Self [EMAIL PROTECTED] http://www.netcom.com/~kmself Evangelist, Zelerate, Inc. http://www.zelerate.org What part of "Gestalt" don't you understand? There is no K5 cabal http://gestalt-system.sourceforge.net/http://www.kuro5hin.org PGP signature
Re: Qt/Embedded
David Johnson wrote: On Friday 17 November 2000 01:20 am, [EMAIL PROTECTED] wrote: The idea is that, if a program is a work, and if (as the courts have held, in Mai v. Peak) a program in memory meets the fixed and tangible requirements of copyright law, and is therefore a copy under copyright law, then a program linked to a library at runtime is a derivative work. I've heard this before, but I've always dismissed it as hearsay. I will have to look up Mai v Peak. The implications of this are mind-boggling! Does Stephen King have rights to my brain because I've read his books and they're now in my memory? Yes. :-) And if your brain, influenced by Mr. King puts out a work that looks like something he wrote, he can sue you for it! Cheers, Ben PS IANAL and I partly wrote that just to tease you. :-) _ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com. Share information about yourself, create your own public profile at http://profiles.msn.com.
