[License-review] The Right of Display

[Pamela Chestek]

We may have veered to a point where no one is interested as this relates
to the CAL, so I'm moving the discussion to the license-discuss list.

On 8/28/2019 1:18 PM, Lawrence Rosen wrote:
>
> 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.
>
Sorry, switched hypotheticals without warning. Assume the screen display
is not just the red box but sufficiently creative to be copyrightable in
its own right. (The red box was used to create a hypothetical that
avoided the Javascript problem.) I have made an original, creative
interface that is part of my computer program. The Copyright Office
considers the code that creates it and the screen display that is
created by the code the same work and courts have adopted that position.

In the case of computer-generated art, I assume your position is that
the code and the resulting artwork are two different copyrightable
works, even though the visual representation is entirely dictated by the
code?
 
>
> > 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.
>
The hypothetical assumes the license is breached, so it doesn't matter
what the license says. The act that occurred upon which to base a
copyright infringement claim is showing a copyrightable interface to the
public. The hypothetical was making the software available to the public
at large, because indeed the display has to be to the public for there
to be an infringement of the right of display. So your distinction is
correct but in my hypothetical that requirement was met. Your client is
the harmed party, where its software is available to all sorts of people
who don't have a license for it. Copyright infringement is exercising
one or more of the exclusive rights of an author in section 106 without
permission. Are you saying in my hypothetical you will tell your client
that there is no claim for copyright infringement? If there is a claim,
which one of the exclusive rights in section 106 will you allege has
been infringed and how?

>  
>
> > "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!
>
And in this case the author's work being disseminated is a computer program.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com
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