[License-review] For Approval: The Cryptographic Autonomy License

[Bruce Perens]

Scott,

Before your arrival I did ask about this, and Van replied with a
justification asserting that public performance was indeed a granted right
regarding software. I reproduce Van's reply below.

This continues to confuse me, since I understood that AGPL went to
significant length to synthesize a public performance right where none
existed.

Van's reply:

Under both US and international law, copyright applies to software by
virtue of software being considered a literary work. See:

"The Copyright Act of 1976, which became effective on January 1, 1978, made
it clear that Congress intended software to be copyrightable. The
definition of literary works in Section 101 states that they are:

works, other than audiovisual works, expressed in words, numbers, or other
verbal or numerical symbols or indicia, regardless of the nature of the
material objects, such as books, periodicals, manuscripts, phonorecords,
film, tapes, disks, or cards, in which they are embodied. {FN7: 17 U.S.C.
§101 <http://www4.law.cornell.edu/uscode/17/101.html>}

Furthermore, the House Report discussing the Act states:

The term “literary works” does not connote any criterion of literary merit
or qualitative value: it includes catalogs, directories, and similar
factual, reference, or instructional works and compilations of data. It
also includes computer data bases, and computer programs to the extent that
they incorporate authorship in the programmer’s expression of original
ideas, as distinguished from the ideas themselves. {FN8: H.R. Rep. No.
94-1476 at 54 <http://digital-law-online.info/lpdi1.0/quotes/fn2-8.htm#q>}"
http://digital-law-online.info/lpdi1.0/treatise17.html

"For the purpose of copyright, the term “literary works” is not confined to
works of literature in the commonly understood sense, but is taken to
include all works expressed in writing, regardless of whether they have
literary merit or not.... Computer software is also considered a “literary
work” and is thus given all of the protections of the copyright law."
https://copyright.uslegal.com/enumerated-categories-of-copyrightable-works/copyright-for-literary-work

"Can I copyright my software or mobile app?
<https://www.wipo.int/copyright/en/faq_copyright.html#accordion__collapse__10>

Computer programs and other types of software are considered as literary
works for copyright purposes. Therefore they receive automatic protection
without the need for registration. In some countries, the process of voluntary
registration
<https://www.wipo.int/copyright/en/faq_copyright.html#accordion__collapse__05_a>
for
software may differ from that for other types of work."

https://www.wipo.int/copyright/en/faq_copyright.html

On Tue, Apr 30, 2019 at 1:37 PM Scott Peterson <speterso at redhat.com> wrote:

> Here is a context in which to consider my earlier comment about
> introducing a new exclusive right for software.
>
> The state of copyright law as it applies to software is a shared resource.
>
> As with public laws generally, one copyright owner or a community of
> developers or some other subset of those who create or use software does
> not get to have its own version of copyright law. We all need to share.
>
> Actions that impact the interpretation of copyright law as it applies to
> software ought to be considered for their impact more broadly, not only on
> the situation that is the immediate subject of the actions.
>
> Of course, there is an opportunity for customization: each copyright owner
> can offer licenses under unique terms that that copyright owner creates.
> But, those license terms still share the underlying copyright law that
> creates the rights being licensed. (But note that there is a shared
> interest in interpretation of widely-used license texts. <
> https://opensource.com/law/16/11/licenses-are-shared-resources> )
>
> -- Scott
>
>
> On Tue, Apr 30, 2019 at 4:06 PM Scott Peterson <speterso at redhat.com>
> wrote:
>
>> I arrive late to this discussion. I am sorry. I should have paid
>> attention earlier.
>>
>> I have just realized that this license asserts that:
>> "... making aspects of the Software, including any interfaces used for
>> access to or manipulation of User Data, directly or indirectly available to
>> the public"
>> is an exclusive right of an owner of copyright in the text of software.
>>
>> If the authors of software who choose to use this license could available
>> themselves of this sort of exclusive right without impacting anyone else,
>> then, fine, whatever. But, they can't. The rights under copyright are (for
>> better or for worse) granted without any action needed on the part of the
>> owner to claim such rights. If this right is a part of the exclusive rights
>> of a copyright holder, then it would apply to existing software -- not just
>> to those who would like a certain type of licensing arrangement.
>>
>> Think of all of the software that is functioning all around us --
>> software that was built and does what it does every day without the
>> expectation of this twist on an exclusive right of public performance.
>>
>> In my view, we do not need a new exclusive right for software; we have
>> enough already.
>>
>> Of course, a license cannot create a new exclusive right. However, it can
>> create a base on which others might build FUD.
>>
>> Let's reduce, rather than increase, FUD about rights relating to software.
>>
>> Whatever the other merits of the license as a whole, I hope that it is
>> revised to eliminate the implication that interoperation of software
>> implicates an exclusive performance right.
>>
>> -- Scott
>>
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>
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