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

VanL van.lindberg at gmail.com
Wed May 1 16:47:41 UTC 2019

So, at the risk of repeating myself, I will include some of the analysis
that I included from my blog post:

What exactly is "public performance"? It is not distribution or
reproduction, because it doesn't result in a new fixation of the work.
Instead, it is the making of a work perceptible by the public that results
in public display or performance. As per 17 U.S.C. § 101:

To perform or display a work “publicly” means—

[. . .]

(2) to transmit or otherwise communicate a performance or display of the
work to a place specified by clause (1) or to the public, by means of any
device or process, whether the members of the public capable of receiving
the performance or display receive it in the same place or in separate
places and at the same time or at different times.

As the World Wide Web was just taking off, President Clinton convened a
group to discuss issues related to the United States' "National Information
Infrastructure." One of the topics discussed was the application of network
technologies to intellectual property, including the public performance
right. As Bruce Lehman wrote in the intellectual property task force report:

A distinction must be made between transmissions of copies of works and
transmissions of performances or displays of works. When a copy of a work
is transmitted over wires, fiber optics, satellite signals or other modes
in digital form so that it may be captured in a user’s computer without the
capability of simultaneous “rendering” or “showing,” it has rather clearly
not been performed. Thus, for example, a file comprising the digitized
version of a motion picture might be transferred from a copyright owner to
an end user via the Internet without the public performance right being
implicated. When, however, the motion picture is “rendered”—by showing its
images in sequence—so that users with the requisite hardware and software
might watch it with or without copying the performance, then, under the
current law, a “performance” has occurred.

In the context of network-capable software, especially distributed systems,
certain elements of the interaction over a network would appear to conform
with this definition. For example, a database that makes its API available
over the network would apply. The software itself is part of a
"performable" literary work, and the API is part of the Work
The element of the API are transmitted to various people at various times
(including possibly to the "public"), but they are not used to recreate a
"copy" of the work. Rather, they are used to make the work
"perceptible"—usable—from a distance.

Thus, the right of public performance appears to apply to software. But
because this is a novel legal theory—for software at least—I added a
definition of "Public Performance" designed to capture this concept in the
CAL directly. The definition is at *CAL § 6(m)*:

“Public Performance” (or “Publicly Performing”) means using the Software to
take any action that implicates the rights of public performance or public
display of a work under copyright law, specifically including making
aspects of the Software, including any interfaces used for access to or
manipulation of User Data, directly or indirectly available to the public.

(End quotation)

For what it is worth, I feel pretty comfortable with this analysis: If I
were to find this same thing asserted in a commercial license context, or
before a court, I would not feel like it was reaching at all. That is why I
felt I could include it here: As long as the API is a copyrightable part of
the work, I don't think this is inventing anything.


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