[H-GEN] GPL question

David Starkoff dbs at uq.net.au
Wed Jan 7 03:32:20 EST 2004


On 07/01/2004, at 1:55 PM, Paul Gearon wrote:

> I'm surprised that there isn't some argument about copies which can't
> exist independently of the source.

I suspect that's because there's no such concept in the Copyright Act.  
The question is whether it is a reproduction (which means a substantial 
reproduction, which is a qualitative, not quantitative, determination) 
in material form.  In Autodesk Inc v Dyason (if memory serves), what 
was copied was a few bits, which were reverse engineered to 
functionally duplicate a dongle.  This was held (by the High Court) to 
be a substantial reproduction and an infringement of Autodesk's 
copyright.

A corollary to this is that there's no real distinction drawn in 
copyright law between an executable program or a program in source code 
form.  They're both considered to be literary works under the Copyright 
Act and entitled to the same protection.

> I concede that this argument would still be at odds with the judgement
> of Microsoft Corp v Business Boost.  However, I found the definition
> that the judge used to be at odds with the finding of Dyason v Autodesk
> Inc (1990) (cited by the judge in the MS case).  According to the
> criteria of the judgement, I fail to see how Dyason could fail to
> consider the transfer of a program into RAM to be a "reproduction or
> adaptation".

The Dyason case cited by Justice Tamberlin in Microsoft Corp v Business 
Boost Pty Ltd was the initial appeal to the Full Court of the Federal 
Court.  The case was then appealed to the High Court (twice!).  In the 
first appeal, Autodesk Inc v Dyason (1992) 173 CLR 300; [1992] HCA 2, 
<http://www.austlii.edu.au/au/cases/cth/HCA/1992/2.html>, the High 
Court allowed the appeal from the Full Court's decision.  In the second 
appeal, the High Court declined to reconsider their earlier decision: 
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6, 
<http://www.austlii.edu.au/au/cases/cth/HCA/1993/6.html>.

In Microsoft v Business Boost, the Full Court's decision was only cited 
for a specific point (whether copying into RAM was a copy "in material 
form") which wasn't really discussed in the High Court.

> I don't know where to find cases like this, so I don't know what
> definitions the judge used in the Dyason case, nor why the operation of
> a program should be considered differently to the simple copying of it
> into RAM.

How do you find cases like this?  Give a lawyer some money, that's how!

As I understand it, in terms of copyright law, the operation of a 
program is considered by determining the nature and extent to which it 
is copied into RAM.  That's the effect of cases like Microsoft v 
Business Boost, Sony v Stevens, and AVRA v Warner (cited in Sony v 
Stevens).

David.




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