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

[Bruce Perens]

I'm responsible for things like "how many ephemeral copies are there within
the Intel processor", rather than the lawyering. I don't do so many
university collaborations any longer, having grown weary of speaking at
elite institutions that never in a million years would have admitted me.

On Tue, Apr 30, 2019 at 3:07 PM Smith, McCoy <mccoy.smith at intel.com> wrote:

> 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>
> 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 :-)
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/attachments/20190430/23af3427/attachment.html>