[H-GEN] GPL question

[David Starkoff]

On 07/01/2004, at 10:45 AM, Anthony Towns wrote:

>> David Starkoff wrote:
>>> When a program on disk is run in a computer, a copy of the computer
>>> program (or at least a partial copy) is copied into RAM.  Absent a
>>> licence, this is an infringement of copyright.  (There's case law on
>>> this in Australia: Microsoft Corporation v Business Boost Pty Ltd
>>> [2000] FCA 1651,
>>> <http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/1651.html>.)
>
> Two points: the Digital Agenda act modified this (and came into law in
> 2001, after David's case afaik), and Eben Moglen would've been talking
> about the situation in the US, which has broad fair use provisions that
> presumably cover this area.

In addition to a specific provision: 17 U.S.C. § 117(a) 
<http://www4.law.cornell.edu/uscode/17/117.html>.  In Australia, prior 
to the introduction of s 47B into the Copyright Act, I suspect one 
would have had to rely on an implied licence argument.

> In Australia, there's an exception for copies that aren't "in material
> form", which may apply to this, but can't be relied upon (and which
> might be ruled out by the above case history); and there're some 
> explicit
> exceptions for running programs.

Microsoft Corp v Business Boost Pty Ltd, on its facts, effectively said 
that copying a program from a hard disk into RAM was a reproduction in 
material form: [2000] FCA 1651 at [12]-[19], 
<http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/1651.html>.  
This can be contrasted with the decision in Kabushiki Kaisha Sony 
Computer Entertainment v Stevens [2002] FCA 906 at [126]-[150], 
<http://www.austlii.edu.au/au/cases/cth/federal_ct/2002/906.html>, more 
popularly known as the PlayStation mod-chipping case.

> I thought the situation in Australia was that you don't need a 
> license, but
> if you're presented with one, you have to follow its terms, or 
> something
> similar.

I'm not quite sure what you're getting at here.  Without a licence 
(which can be implied), a person can't do any of the acts comprised in 
the copyright, which includes reproducing the program (which seems to 
include reproductions made to RAM).  Importantly, s 47B doesn't kick in 
unless "the running of the copy is done by, or on behalf of, the owner 
or licensee of the copy": Copyright Act 1968 (Cth) s 47B(1)(b).

David.