[License-discuss] proposal to revise and slightly reorganize the OSI licensing pages

[Chris Travers]

On Mon, Jun 11, 2012 at 8:10 PM, Rick Moen <rick at linuxmafia.com> wrote:
> Quoting Chris Travers (chris at metatrontech.com):
>
>> Can you name a single case where a US court has said that if literal
>> copying of code is required for interoperability of practical software
>> or other practical tools (printer cartridges, garage door openers,
>> etc), that this gives the copyright owner control over the markets for
>> add-on products?
>
> Can you name a single reason why this utterly bizarre question has any
> connection whatsover to anything I've said?  It doesn't.

Yes I can. And I can tell you why it's not so bizarre.

When you look at cases like Atari v. Nintendo, or Midway v. Arctic,
these cases involve works of entertainment.  When we look at cases
like Galoob v. Nintendo, Lexmark v. SCC, Sony v. Connectix, and Oracle
v. Google, these cases are about practical tools.  There is a huge
statutory difference between these two types of cases:  The latter
implicate 17 USC 102(b) while the former do not.  In other words there
are no issues in 17 USC 102(b) with classifying The Wind Done Gone as
an unathorized derivative work of Gone with the Wind, but there are
when classifying literal copies of printer cartridge authentication
software as copyright infringement even where the copying is both
unauthorized and literal.  That section prevents copyright from being
used to enforce things that are at the core of patent law, including
practical techniques and tools.

Now, here's how I read the latter line of cases and I want you to go
and tell me why you think I am misreading them.

Galoob was about whether Midway v. Actic prevented a vendor from
making a product that, among other things skipping levels in a game.
The court approached the program in question (Game Genie) as being the
functional equivalent of a VCR being used to fast forward through
scenes of a movie.  To the extent that a new audiovisual work was
produced (ala Midway) this was considered to be fair use, just as the
copyright owner can't say that when you fast forward through part of a
movie you are creating an unauthorized derivative work (drawing
heavily I think on Betamax and other related precedents).

Lexmark involved the case of Static Control copying Lexmark's
copyrighted works verbatim and including them with their printer
cartridges.  The court first held that 17 USC 102(b) applied to areas
functionally required for these aftermarket parts, and then concluded
that after copying required for interop was removed from the equation,
it didn't reach de minimis levels required for infringement.  In other
words, Lexmark couldn't make their printers dependent on software in
the cartridge and then use this to control after market purchases of
printer cartridges.  This is probably the most similar to the linking
issue and the GPL.

In Sony, Connectix was making a software emulator for a Sony game
console.  They tried a bunch of ways to reverse engineer the firmware
and eventually resorted to copying it, reverse compiling it, and then
having a another team write compatible firmware.  Sony sued alleging
copyright infringement and the court held that copying was done only
to accomplish goals protected by 17 USC 102(b) and therefore it was
fair use.

Similar to Sony, Oracle involved a case where Google was making a
clone of Oracle's software.  The court held that copying API
definitions was protected to the extent it was necessary to accomplish
goals protected in 17 USC 102(b).  The fact that the API definitions
must be reproduced exactly in order to be functionally compatible
means they cannot be given copyright protection regardless of the
level of literal copying going on.

So there's my understanding.  I have given you some case law I have
read and why I understand it to be the way it is.  That is quite
frankly more than you have done.  These aren't new issues, and it
surprises me that people ignore that section of US law when it comes
to questions of what the GPL requires.

Again my understanding is that 17 USC 102(b) only applies to works
which are practical rather than entertaining, and it protects the
right to copy whatever you reasonably have to in order to achieve
interoperability.  I was just wondering if you had any cases which
suggested a contrary understanding.

Best Wishes,
Chris Travers