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Creative expression fixed in a medium | 354 comments | Create New Account
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Creative expression fixed in a medium
Authored by: dio gratia on Monday, November 26 2012 @ 03:11 PM EST

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 copyright).

“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). It might be safer to say software is another whole ball of wax.

[ Reply to This | Parent | # ]

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