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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Software copyright | 354 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Creative expression fixed in a medium
Authored by: Anonymous on Monday, November 26 2012 @ 03:39 PM EST
So Williams tells us that a ROM is a physical object, and that expressions
can be fixed therein. A hard disk is also a physical object. Has any
defendant successfully argued that expressions are not fixed in
a hard disk?

[ Reply to This | Parent | # ]

Software copyright
Authored by: Ian Al on Tuesday, November 27 2012 @ 02:17 AM EST
I was trying to remain specifically on point. I was talking about the US law for
all copyright in the hope that folk would see that software copyright is not a
special case. The rules you state for dealing with software copyright issues are
just ways of addressing the copyright law restrictions when considering source
code.

As far as your heresy about derived works, I agree with you. I have never
considered that copyright protects compiled binaries in a legally precise way.

At the moment, I am trying to recompile a simple library (it's LGPL. I'm free to
do that) and all the goodness is in the include files. I wonder how much of the
creative expression comes from the .c file and how much from the .h.

If I manage to recompile the file, will there be any discernable creative
expression in the binary from the .c file or will it legally be so far removed
from the original creative expression that it fails the various tests you
enumerated for copyright protection? It's a bit like writing a new book using
words and phrases from a collection of other copyright books. In Oracle v.
Google, the judge pointed out that words and phrases were not protected by
copyright. He also pointed out that the ideas expressed by the files were not
protectable, either.

Forget the LGPL nature of the library for a moment. If someone copies the
binary, whose copyright is being infringed? If the creative expression in the .c
file is absorbed in a great weight of .h goodness, have I materially copied the
original creative expression? One of the .h files refers to interoperation with
a hardware chip. Just how creatively expressed can the .h file be and not fry
the chip?

If I copy a Microsoft program without obtaining a Microsoft licence, can
Microsoft legally prove infringement on a specific copyright creative expression
fixed in a medium? It's not as if any one program is derived from a single
copyright work. A Microsoft 'program' has been a collection of different files
with different authors for many years and each file is a combination of many
more compiled source files. We all remember that Microsoft borrowed BSD
networking code that came with BSD copyright.

If the legal infringement of a Microsoft program package of binaries claimed to
be their copyright is to be proved to an adequate legal level, the court case
would last a lifetime.

I think the 'derivative' nature of binaries is a conceit to enforce EULAs using
copyright law. If copyright infringement cannot be proven, what law is left to
back up the EULA? In any case, the EULA will typically go way beyond the reach
of copyright protection. It's in the same ball park as saying that you are not
licensed to read a particular copyright book or magazine whilst sitting in the
loo.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | Parent | # ]

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