[License-discuss] [License-review] The Right of Display

Wed Aug 28 21:50:02 UTC 2019

[Just to license-discuss]

Pam Chestek wrote:

> In the case of computer-generated art, I assume your position is that the code and the resulting artwork are two different copyrightable works, even though the visual representation is entirely dictated by the code?

Two problems in that sentence: First, the artwork is not "resulting." The code doesn't create the artwork, it merely facilitates the display of the artwork. A Picasso painting is not created in any sense by my browser just because Google displays it to me. When I watch a presentation on YouTube, my browser isn't creating anything relating to the "literary work" that is the presentation. Of course, I can't see the presentation without the browser turned on and without the YouTube server sending bits down the channel to me, but the creative work that is the presentation is in no sense created by the browser. A book that I read is not created by the printing press, although without a printing press or a monk with a quill pen in the process somewhere, I can't read my copy. Browser software doesn't result in literary works, or vice versa.

Second, the code doesn't "dictate" the visual representation. It merely enables it technically to be visually represented. The literary content in the work that earns a copyright is not the separate copyrighted software code that visualizes it.

What I mean is that we are indeed speaking about two different works. As I said before, one is the projector and the other is the movie. They are related only in the sense that a projector displays movies and doesn't display its software, and the software doesn't reveal the literary plot of the copyrighted work that is the movie. But without both, I have neither.

> The Copyright Office considers the code that creates it and the screen display that is created by the code the same work and courts have adopted that position.

You need to cite some court case to explain that. Courts have reached strange decisions before; maybe this time also? Or maybe they mean something specific and different than what you suggest applies to literary works and software browsers.

> The act that occurred upon which to base a copyright infringement claim is showing a copyrightable interface to the public.

I mostly agree with that, except what do you mean by "interface"? The copyrightable interface embodied in the browser is not the infringed YouTube presentation that I am displaying. Bruce Perens recently wrote that "what is communicated is a textual document which contains identifiable fragments of the producing program." But often that isn't true at all. What copyrightable fragments of my software browser are contained in a Shakespeare play I display that has entirely lost its copyright due to age?

> The hypothetical was making the software available to the public at large, because indeed the display has to be to the public for there to be an infringement of the right of display. 

Yes, there is a "right of display to the public" of a copyrighted work that must be breached to be an infringement. But that display is of the copyrighted work being displayed, not the display of the browser that exists in one copy only on my machine. I did not copy or display the browser itself. 

Of course, if the browser inserts part of its own code into that other copyrighted work, as Bruce suggests, that could be an infringement of browser code. I don't think that happens much if at all. And if it does happen, is that merely a copy of functional HTML software that is not itself eligible for copyright?

Your conclusion: "And in this case the author's work being disseminated is a computer program."

Nope. The author's work is a YouTube presentation, or a Shakespeare play, or a symphony. The computer program is merely a browser, a tool for displaying other copyrighted works.

Now for license-discuss@: Why are we arguing this? I am willing to give copyright credit to both the movie and to the (open source?) projector software that displays it. I just don't want the two to be confused with each other, or one to take or claim copyrights in the other.

/Larry

From: License-discuss <license-discuss-bounces at lists.opensource.org> On Behalf Of Pamela Chestek
Sent: Wednesday, August 28, 2019 12:08 PM
To: license-review at lists.opensource.org; license-discuss at lists.opensource.org
Subject: Re: [License-discuss] [License-review] The Right of Display

We may have veered to a point where no one is interested as this relates to the CAL, so I'm moving the discussion to the license-discuss list.

On 8/28/2019 1:18 PM, Lawrence Rosen wrote:

Pam Chestek wrote:

> You've misidentified the copyrighted work. The statutory term is "computer program." You are describing it as limited to the code, but the Copyright Office's view is that the screen displays are part of the "computer program." Your distinction between the literal code on your end and the instructions it sends to render a display is not one the Copyright Office currently agrees with. I receive information generated by your computer program that tells my computer, acting as a remote terminal, what will appear on the screen. I have not received a tangible copy of the computer program, so there is no distribution, but there has been a display of the computer program. If you want to argue that the Copyright Office's view on screen displays also means the software has bee distributed, and therefore the requirements of the GPL must be met, we can go there.

Pam, I believe that you have misidentified the copyrighted work. The copyright law contains many provisions that deal with the display of copyrighted works using broadcast and networking technology. (That is not the subject of "open source.") But the works that are displayed are themselves usually copyrighted works, not red boxes on a screen. Of course, the software that operates on the broadcasters' computers is also copyrighted, but those copyrights are not breached because of the copyrights on what they display. You are confusing the works displayed from the software technology that does the displaying, the projector from the movie being projected.

Sorry, switched hypotheticals without warning. Assume the screen display is not just the red box but sufficiently creative to be copyrightable in its own right. (The red box was used to create a hypothetical that avoided the Javascript problem.) I have made an original, creative interface that is part of my computer program. The Copyright Office considers the code that creates it and the screen display that is created by the code the same work and courts have adopted that position.

In the case of computer-generated art, I assume your position is that the code and the resulting artwork are two different copyrightable works, even though the visual representation is entirely dictated by the code?

> Let's move to the proprietary world for a moment. I have given you a copy of a computer program with a browser-based graphical user interface. I have licensed it to you for your sole use on a single computer. You install it on a server and make it available to the world. I hope we agree that there is a breach of the license that results in a claim of copyright infringement.

No, we don't necessarily agree. First, if there is an explicit license involved, I'd need to read its terms and conditions. Proprietary licenses can be unfair but nonetheless enforceable. Second, assume a simple license that permits me to run that browser on a single computer, but I invite my friends and colleagues into my home to watch some display on my screen. I have not breached that browser license. Do you have super bowl or academy awards parties at your house, using your "single computer" licensed software and hardware? Of course, displaying those copyrighted programs at commercial movie theaters with a single browser is not permitted by the Copyright Act.

The hypothetical assumes the license is breached, so it doesn't matter what the license says. The act that occurred upon which to base a copyright infringement claim is showing a copyrightable interface to the public. The hypothetical was making the software available to the public at large, because indeed the display has to be to the public for there to be an infringement of the right of display. So your distinction is correct but in my hypothetical that requirement was met. Your client is the harmed party, where its software is available to all sorts of people who don't have a license for it. Copyright infringement is exercising one or more of the exclusive rights of an author in section 106 without permission. Are you saying in my hypothetical you will tell your client that there is no claim for copyright infringement? If there is a claim, which one of the exclusive rights in section 106 will you allege has been infringed and how?

> "Since … 1961, we have become increasingly aware of the enormous potential importance of showing, rather than distributing, copies as a means of disseminating an author's work...."

I am fully aware of that reality. But read that sentence carefully: It is the dissemination of an author's work, not a dissemination of the display technology, that concerns the copyright office. And as I suggested above, there are many provisions of the US Copyright Act that draw that distinction very clearly!

And in this case the author's work being disseminated is a computer program.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com <mailto:pamela at chesteklegal.com> 
www.chesteklegal.com <http://www.chesteklegal.com> 

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