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

[VanL]

Hello Larry,

Thank you for your detailed response. Let me try again.

As I take it, you find public performance to be limited to things like
audiovisual works. Your examples include things like Pandora (music) and
the "image components" of the work. As such, you object to my use of this
term of art because you find that it is "misleading" relative to your
understanding of what public performance means.

In contrast, I believe that the term of art "public performance"
encompasses more than you are appreciating. For example, take the
legislative history, H.R. REP. No. 94-1476, at 63 (1976):

To "perform" a work under the definition in section 101, includes reading a
literary work aloud, singing or playing music, dancing a ballet or other
choreographic work, and acting out It dramatic work or pantomine. A
performance may be accomplished "either directly or by means of any device
or process," including all kinds of equipment for reproducing or amplifying
sounds or visual images, any sort of transmitting apparatus, any type of
electronic retrieval system, and any other techniques and systems not yet
in use or even invented.

Note that the rendering of the text (not rendering in a computer graphics
sense, but in the reproductive sense) was specifically included, and it
could happen via any sort of device. At least one court has considered that
a SaaS application could be performing a literary work, citing this as
precedent. In *Miller v. Facebook*, Inc., C 10-00264 WHA, 2010 WL 2198204,
at *5 (N.D. Cal. May 28, 2010, Alsup, J.), the court said:

"At best, defendant Yeo’s alleged publication of the ChainRxn video game
for play by Facebook users constituted a public performance of plaintiff’s
copyrighted work under 17 U.S.C. 106(4). Just as Congress considered the
“reading a literary work aloud” as a performance rather than display of a
literary work, *the reading of Boomshine’s copyrighted source or machine
code by a computer (resulting in the presentation of the video game to the
user) could be seen as an analogous performance of the underlying work*.
See H.R. REP.NO. 94-1476, at 63 (1976).

In that case, the plaintiff lost because he did not properly plead the
facts that could support his contention - but server-to-client transmission
of material was considered to be in the scope of the public performance
right.

See also Perry, Mark and Watt, Stephen M., "Performance Rights for
Software" (2006), Law Publications 3, available at <
https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1002&context=lawpub>:

"We  see  that while modern software licenses are typically built around
the reproduction right in copyright as a ‘literary work’, this is a rather
artificial protection mandated by the TRIPS Agreement and implemented in
the Copyright Act. The central issue is actually the conditions under which
the  software may be used. That is, who may use it, under what conditions
and when. We claim that running a computer program is very similar in
principle to playing a piece of recorded music or video, or indeed a radio
broadcast for web services. While the particular recording of  a piece of
music, motion picture  or stage play script is protected by one copyright
or another, in principle the more important intellectual property right in
these works in this century is the exclusive right to authorize the
performance of the work.[ix] This is particularly evident when the primary
revenue stream is seen to come from  performance licensing. We argue that
these rights should equally well apply to software."

------

You also take pains to highlight that it is the *execution* of the software
that we care about. Functionally I agree. Legally, I do not. Executing
software is not a reserved right under copyright (as opposed to under
patent, where it maps directly to the reserved right to "use" the
software). None of the tools that we have under copyright are able to
*directly* address the execution of software. It just isn't there.

Thus, the ability to execute the software is usually taken as either an
adjunct of the right to copy (because execution on a computer requires
copying) or it is treated as a contractual restriction that is accepted by
licensees in return for the rights to make a copy.

------

You also say:

On Mon, May 13, 2019 at 10:19 PM Lawrence Rosen <lrosen at rosenlaw.com> wrote:

> My objections have nothing to do with patent law. The word "use" is
> frequently misconstrued in open source licenses to imply a patent license.
> Perhaps, or perhaps not? A patented API is a different beast from one where
> only copyright is claimed.
>

I am not sure this is germane to the discussion over the CAL, but suffice
it to say I disagree. The use of reserved language implicating the patent
statute has been found to create a patent license, even when the word
"patent" was not included in the license. *In re Davidson Hydrant Techs.,
Inc.*, 2012 Bankr. LEXIS 1120, (Bankr. N.D. Ga. 2012).

What you wish to do with CAL can perhaps be done better with correct words.
> I apologize for calling your response a "casual dismissal." Neither is my
> objection casual.
>

I hope I have treated your objection appropriately carefully. Again, I
welcome your challenge as to the references and reasoning above.

Thanks,
Van
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