[License-review] For approval: The Cryptographic Autonomy License (Beta 2)

Wed Aug 28 17:18:38 UTC 2019

Pam Chestek wrote:

> You've misidentified the copyrighted work. The statutory term is "computer program." You are describing it as limited to the code, but the Copyright Office's view is that the screen displays are part of the "computer program." Your distinction between the literal code on your end and the instructions it sends to render a display is not one the Copyright Office currently agrees with. I receive information generated by your computer program that tells my computer, acting as a remote terminal, what will appear on the screen. I have not received a tangible copy of the computer program, so there is no distribution, but there has been a display of the computer program. If you want to argue that the Copyright Office's view on screen displays also means the software has bee distributed, and therefore the requirements of the GPL must be met, we can go there.

Pam, I believe that you have misidentified the copyrighted work. The copyright law contains many provisions that deal with the display of copyrighted works using broadcast and networking technology. (That is not the subject of "open source.") But the works that are displayed are themselves usually copyrighted works, not red boxes on a screen. Of course, the software that operates on the broadcasters' computers is also copyrighted, but those copyrights are not breached because of the copyrights on what they display. You are confusing the works displayed from the software technology that does the displaying, the projector from the movie being projected.

> Let's move to the proprietary world for a moment. I have given you a copy of a computer program with a browser-based graphical user interface. I have licensed it to you for your sole use on a single computer. You install it on a server and make it available to the world. I hope we agree that there is a breach of the license that results in a claim of copyright infringement.

No, we don't necessarily agree. First, if there is an explicit license involved, I'd need to read its terms and conditions. Proprietary licenses can be unfair but nonetheless enforceable. Second, assume a simple license that permits me to run that browser on a single computer, but I invite my friends and colleagues into my home to watch some display on my screen. I have not breached that browser license. Do you have super bowl or academy awards parties at your house, using your "single computer" licensed software and hardware? Of course, displaying those copyrighted programs at commercial movie theaters with a single browser is not permitted by the Copyright Act.

> "Since … 1961, we have become increasingly aware of the enormous potential importance of showing, rather than distributing, copies as a means of disseminating an author's work...."

I am fully aware of that reality. But read that sentence carefully: It is the dissemination of an author's work, not a dissemination of the display technology, that concerns the copyright office. And as I suggested above, there are many provisions of the US Copyright Act that draw that distinction very clearly!

> What is different about the CAL and the OSL is that the OSL only imposes obligations on exercise of one of the exclusive rights of authors, the right to create derivative works (1(c), 6).

I leave it to Van to distinguish CAL and OSL. 

/Larry

From: License-review <license-review-bounces at lists.opensource.org> On Behalf Of Pamela Chestek
Sent: Wednesday, August 28, 2019 8:45 AM
To: license-review at lists.opensource.org
Subject: Re: [License-review] For approval: The Cryptographic Autonomy License (Beta 2)

On 8/27/2019 9:14 PM, Lawrence Rosen wrote:

Pam Chestek wrote:
> The copyleft/source code requirements of GPL are implicated on distribution, not on display. It's not an issue under the GPL.

Pam, I remain confused. Perhaps I have not read and understood clearly the recent flood of emails about CPL. How does a display of code differ from a distribution of code? These are both distributions. Neither of those alternatives have anything to do with the display of a red box on your screen, unless you received code to display a red box rather than an order to use your own code to do the display.

You've misidentified the copyrighted work. The statutory term is "computer program." You are describing it as limited to the code, but the Copyright Office's view is that the screen displays are part of the "computer program." Your distinction between the literal code on your end and the instructions it sends to render a display is not one the Copyright Office currently agrees with. I receive information generated by your computer program that tells my computer, acting as a remote terminal, what will appear on the screen. I have not received a tangible copy of the computer program, so there is no distribution, but there has been a display of the computer program. If you want to argue that the Copyright Office's view on screen displays also means the software has bee distributed, and therefore the requirements of the GPL must be met, we can go there. 

Let's move to the proprietary world for a moment. I have given you a copy of a computer program with a browser-based graphical user interface. I have licensed it to you for your sole use on a single computer. You install it on a server and make it available to the world. I hope we agree that there is a breach of the license that results in a claim of copyright infringement. What is the infringed right? It's not the rights of reproduction (you made the one copy you were licensed to make) or distribution (because the public, interacting through a browser, doesn't ever get a copy of the computer program). Public performance? Possibly. Why is inconceivable that it's an infringement of the right of display? Remote viewing, including on computers, is exactly what the drafters of the Copyright Act of 1976 were thinking about when they added display as an exclusive right of an author: 

"Since … 1961, we have become increasingly aware of the enormous potential importance of showing, rather than distributing, copies as a means of disseminating an author's work. In addition to improved projection equipment, the use of closed- and open-circuit television for presenting images of graphic and textual material to large audiences of spectators could, in the near future, have drastic effects upon copyright owners' rights. Equally if not more significant for the future are the implications of information storage and retrieval devices; when linked together by communications satellites or other means, these could eventually provide libraries and individuals throughout the world with access to a single copy of a work by transmission of electronic images. It is not inconceivable that, in certain areas at least, 'exhibition' may take over from 'reproduction' of 'copies' as the means of presenting authors' works to the public, and we are now convinced that a basic right of public exhibition should be expressly recognized in the statute." 

Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess. 20 to 21 (House Comm. Print 1965).

I addressed this issue in OSL 3.0, which also deals with network distribution. The mere distribution of the result of a program or the data used to create that result does not create a distribution of the program itself. Is CPL different? 

I don't see what you're referring to in the OSL, but what you've described is a situation where you have simply defined "distribution" in a way that may differ from the legal meaning in the Copyright Act, as you are perfectly free to do. Nothing is coming to mind in the CAL as defining terms differently from their meaning under the copyright law of the enforcing jurisdiction. As an aside though, if the meaning of "distribution" was clear under copyright law, why would you need to add any proviso about it? 

What is different about the CAL and the OSL is that the OSL only imposes obligations on exercise of one of the exclusive rights of authors, the right to create derivative works (1(c), 6). The GPL only imposed obligations when the exclusive right of distribution has been exercised. The CAL imposes obligations on the exercise of any exclusive right of an author ("4. Conditions. If You exercise any permission granted by this License ... You must comply with the following conditions ..."). 

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com <mailto:pamela at chesteklegal.com> 
www.chesteklegal.com <http://www.chesteklegal.com> 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/attachments/20190828/9edf5146/attachment.html>