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

Bruce Perens bruce at perens.com
Tue Apr 30 22:00:19 UTC 2019

Interesting opinion by Lothar Determann:

Under § 106(4), the copyright owner has the exclusive right to, “in the
case of literary, musical, dramatic, and choreographic works, pantomimes,
and motion pictures and other audiovisual works, perform the copyrighted
work publicly.” Software source and object code typically qualifies as a
literary work because it consists of numbers and letters. When executed, it
causes computers to display user-generated output—which the software
copyright owner does not own—and a GUI—which the software copyright owner
typically does own. GUIs contain words, numbers, and graphics and qualify
as literary, pictorial, or graphic works under § 102(a). GUIs do not
“consist of a series of related images which are intrinsically intended to
be shown”; thus, they do not qualify as audio-visual works.57 Section
106(4) does not cover pictorial and graphic works in its enumeration of
protected works.58 Thus, the right to public performance under § 106(4)
cannot apply to Scenarios 1 through 5 or 7, unless the literary works
elements of the underlying code or GUI are “performed.”

“To ‘perform’ a work means to recite, render, play, dance, or act it,
either directly or by means of any device or process or, in the case of a
motion picture or other audiovisual work, to show its images in any
sequence or to make the sounds accompanying it audible.”59 The enumerated
activities (recite, render, play, dance, act) all require as a common
feature that the work be presented to a human audience in a manner that the
work can be perceived visually or audibly.60 The execution of code
internally within a computer does not cause or allow perception by a human
audience and thus does not constitute performance.61 The text elements of a
GUI are displayed statically for viewing and interacting with the program,
but usually not shown in a sequence or made audible. Therefore, software as
such is not susceptible to public performance under § 106(4).

There's more in the article.

So, we have some interesting questions. Van might wish to try to rebut
Lothar's opinion. Is it in OSI's interest to approve licenses which assert
the public performance right for purposes *other* than requiring
publication of the source code? I note that although FSF disapproves of the
assertion of a public performance right in software (or any more rights
whatsoever), they did try to make use of something similar in AGPL, and OSI
approved the license after some argument.



On Tue, Apr 30, 2019 at 2:49 PM Smith, McCoy <mccoy.smith at intel.com> wrote:

> FWIW, there is a discussion of this question in the following article:
> https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2046&context=btlj,
> specifically in Sections III.C.6 & III.C.7.
> *From:* License-review [mailto:license-review-bounces at lists.opensource.org]
> *On Behalf Of *Bruce Perens via License-review
> *Sent:* Tuesday, April 30, 2019 2:44 PM
> *To:* License submissions for OSI review <
> license-review at lists.opensource.org>
> *Cc:* Bruce Perens <bruce at perens.com>
> *Subject:* Re: [License-review] For Approval: The Cryptographic Autonomy
> License
> Let's try that again.
> Van's response was a reply to this question:
> >* First, would you please discuss whether there is a sufficient public*
> >* performance right for software defined in 17 USC 106 (4), (5) and (6)? I*
> >* read your discussion of Public Performance and was not enlightened.**
> Upon re-reading, it appears that Van read my question as asking whether
> software was copyrightable at all, and did not really answer the question
> about the public performance right. This is either misunderstanding, or
> squirrely lawyer stuff :-)
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