Qt/Embedded

[Eric Jacobs]

On Sat, 18 Nov 2000, kmself at ix.netcom.com 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.

:
> > 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.

And if such in-memory copying is an "essential step in the utilization
of the computer software in conjuction with a machine."

> > 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.

This has to do with making a permanent copy, which is probably not
what dynamic linking will be doing.

>     <...>
> 
>     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.  

This establishes that copies in RAM are indeed protected by 
copyright law, but doesn't address 17 USC 117.

> 
>     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 act of
>     running the Program is not restricted, and the output from the
>     Program is covered only if its contents constitute a work based on
>     the Program (independent of having been made by running the
>     Program).
>
>     (GNU GPL v 2, June, 1991)

Correct. But under Mai v Peak, copying a program into RAM to run it
(not the running itself) is copying that would have to be licensed
by the copyright holder. In the case of the GPL, that means the user
would have to do one of the first two requirements of Section 3:
either load the source code into memory, or else accompany the
image in memory with a written offer to provide the source code.

> 
> > 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. 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.) Of course, it is not up to the GPL or any other
license to determine the meaning of the term.