The subject of the comment to which I addressed my response was software,
forgive me for staying specifically on point.
While you're at it, an
executable program may not be considered a derivative of software source code.
See Professor Lee Holaar's Legal Protection of
Digital Information, specifically Chapter 2:
Copyright of Computer Programs, II.B. Object Code, II.B.1. Williams
Electronics v. Artic International ( Williams
Electronics, Inc. v. Artic International, Inc. ), which relies on the
definition of copies provided by the Copyright Act of 1976 found in 17 U.S.C. § 101 for
demonstrating that the original software program source code may be perceived
from object code (however imperfectly, however those elements subject to
“Copies” are material objects, other than phonorecords,
in which a work is fixed by any method now known or later developed, and from
which the work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term “copies” includes the
material object, other than a phonorecord, in which the work is first fixed.
The Contu Report Chapter 3
– Computers and Copyright addresses the subject extensively, and we find
that the sleight of hand mechanism used to equate object code as a copy had many
dissenters, including Professor Holaar. They considered it Distortion by
Shoehorn, although the same reasoning is also used to equate say a compressed
file as a copy of a protected work.
Having worked in the fields of
optimization, disassembly and decompilation one could wonder how much of the
original work could be perceived from an executable, admittedly potentially
having shed copyright protection ineligible elements.
Lee Holaar also
addresses the definition of derivative work in Chapter 2:
Copyright of Computer Programs, VI.D. New Software from Old, VI.D.4. Derivative
Works and Compilations, where we find limitations based on House of Representatives Report No. 94-1476 which also demonstrates
the limitations on API calls forming derivative works. Essentially a derivative
work must contain some portion of the original work and in software as a
literary work, literally.
So a compiled program can be a copy but not a
derivative work. (And those in the audience who agree with this, please raise
your hands, in my opinion copyright has been stretched beyond Constitutional
bounds to do so, but then my strict constructionist opinion doesn't count). The
polite fiction is the only way you could equate a document with a word file for
instance, otherwise the copyright would solely on the word file and it's
derivatives for any changes in the represented document.
Separately in the
case of software source compiled to machine code you'd expect there to be
idea-expression merger issues as well (an expanded range of Scènes à faire).
might be safer to say software is another whole ball of wax.
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