Qt/Embedded

[kmself at ix.netcom.com]

on Fri, Nov 17, 2000 at 10:53:23PM -0500, Eric Jacobs (eaj at ricochet.net) wrote:
> 
> On Fri, 17 Nov 2000, David Johnson wrote:
> > 
> > On Friday 17 November 2000 01:20 am, kmself at ix.netcom.com wrote:
> > 
> > > The idea is that, if a program is a work, and if (as the courts
> > > have held, in Mai v. Peak) a program in memory meets the fixed and
> > > tangible requirements of copyright law, and is therefore a copy
> > > under copyright law, then a program linked to a library at runtime
> > > is a derivative work.
> 
> I don't see how this follows.

You don't see how what follows?  That linking is a corrolate of Mai v.
Peak, or the principles established in Mai v. Peak?

> > I've heard this before, but I've always dismissed it as hearsay. I
> > will have to look up Mai v Peak. The implications of this are
> > mind-boggling! Does Stephen King have rights to my brain because
> > I've read his books and they're now in my memory?
> 
> If that is what the license requires, then yes.

Barring substantive legal foundations for that conclusion, I'm afraid I
remain unconvinced.  However, a claim to programs in computer memory is
pretty much what Mai validates, for licensed software.

> Mai v Peak establishes that because a computer program has to be
> copied to memory to be used, one can be guilty of copyright
> infringement merely by using the work. 

If one is not the "the owner of a copy" of a program.

If you are the owner of a copy, your rights to produce this in-memory
copy are addressed by 17 USC 117.  If not, my understanding is that the
rights must be granted under the licensing provisions of the software,
or made available through one of the limitations on exclusive rights.

> The court did not seem to cover Section 117 of Title 17 very
> thoroughly and it seems to me that similar cases could argue under
> 117(a)(1) especially.

Opinions vary.  I'd say the court considered 117, though.  Specifically:

    The law also supports the conclusion that Peak's loading of
    copyrighted software into RAM creates a "copy" of that software in
    violation of the Copyright Act. In Apple Computer, Inc. v.  Formula
    Int'l, Inc., 594 F.Supp. 617, 621 (C.D.Cal. 1984), the district
    court held that the copying of copyrighted software onto silicon
    chips and subsequent sale of those chips is not protected by 117 of
    the Copyright Act. Section 117 allows "the `owner' 5 of a copy of a
    computer program to make or authorize the making of another copy"
    without infringing copyright law, if it "is an essential step in the
    utilization of the computer program" or if the new copy is "for
    archival purposes only." 17 U.S.C. 117 (Supp.  1988).  6 One of the
    grounds for finding that 117 did not apply was the court's
    conclusion that the permanent copying of the software onto the
    silicon chips was not an "essential step" in the utilization of the
    software because the software could be used through RAM without
    making a permanent copy.

    <...>

    We have found no case which specifically holds that the copying of
    software into RAM creates a "copy" under the Copyright Act. However,
    it is generally accepted that the loading of software into a
    computer constitutes the creation of a copy under the Copyright Act.
    See e.g.  Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260 (5th
    Cir. 1988) ("the act of loading a program from a medium of storage
    into a computer's memory creates a copy of the program"); 2 Nimmer
    on Copyright, 8.08 at 8-105 (1983) ("Inputting a computer program
    entails the preparation of a copy."); Final Report of the National
    Commission on the New Technological Uses of Copyrighted Works, at 13
    (1978) ("the placement of a work into a computer is the preparation
    of a copy"). We recognize that these authorities are somewhat
    troubling since they do not specify that a copy is created
    regardless of whether the software is loaded into the RAM, the hard
    disk or the read only memory ("ROM").  However, since we find that
    the copy created in the RAM can be "perceived, reproduced, or
    otherwise communicated," we hold that the loading of software into
    the RAM creates a copy under the Copyright Act.  17 U.S.C. 101. We
    affirm the district court's grant of summary judgment as well as the
    permanent injunction as it relates to this issue.  


    http://laws.lp.findlaw.com/9th/2/991/511.html

> Even under the conclusion of Mai v Peak, the effect on the GPL would
> be to require users to proliferate "written offers" (or copies of the
> source code) and "prominent notices" of modifications (if the program
> is modified) throughout their computer's RAM and other temporary
> storage locations as they are operating a GPL'd program.

No.  GPL specifically provides this right, or rather, doesn't deny any
rights necessary to run a program: 

    Activities other than copying, distribution and modification are not
    covered by this License; they are outside its scope.  The act of
    running the Program is not restricted, and the output from the
    Program is covered only if its contents constitute a work based on
    the Program (independent of having been made by running the
    Program).

    (GNU GPL v 2, June, 1991)


> Whether "a program linked to a library at runtime is a derivative
> work" is a different question.

The answer is unambiguous:  it's a derivative work.  Whether or not it
is a *protected* work is another question.

> IANAL.

Likewise.

-- 
Karsten M. Self <kmself at ix.netcom.com>     http://www.netcom.com/~kmself
 Evangelist, Zelerate, Inc.                      http://www.zelerate.org
  What part of "Gestalt" don't you understand?      There is no K5 cabal
   http://gestalt-system.sourceforge.net/        http://www.kuro5hin.org
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