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

Tue Apr 30 21:40:42 UTC 2019

Van's response was a reply to this question:

On Tue, Apr 30, 2019 at 2:31 PM Bruce Perens <bruce at perens.com> wrote:

> 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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>>
>> http://lists.opensource.org/mailman/listinfo/license-review_lists.opensource.org
>>
>
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