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

[Smith, McCoy]

Also, FWIW:

“The Author thanks Bruce Perens for contributions and explanations on technical details”

From: Bruce Perens [mailto:bruce at perens.com]
Sent: Tuesday, April 30, 2019 3:00 PM
To: Smith, McCoy <mccoy.smith at intel.com>
Cc: License submissions for OSI review <license-review at lists.opensource.org>
Subject: Re: [License-review] For Approval: The Cryptographic Autonomy License

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.

    Thanks

    Bruce

On Tue, Apr 30, 2019 at 2:49 PM Smith, McCoy <mccoy.smith at intel.com<mailto: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<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<mailto:license-review at lists.opensource.org>>
Cc: Bruce Perens <bruce at perens.com<mailto: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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