[H-GEN] GPL question

[David Starkoff]

On 07/01/2004, at 8:23 PM, Trent WADDINGTON wrote:

> On Wed, 7 Jan 2004, David Starkoff wrote:
>
>> Running a computer program necessarily involves making a copy of it,
>> which is an exclusive right of the copyright owner.  Without specific
>> statutory authorisation or a (possibly implied) licence, it is
>> therefore not permitted by copyright law.  Microsoft Corp v Business
>> Boost Pty Ltd, and its U.S. cousin MAI Systems v Peak, holds as much.
>> That's (one reason) why copyright law is so pervasive in relation to
>> computer programs.
>
> You're the lawyer, so I guess I have to take your word for it.

Just to be clear, no, you don't have to take my word for it.  (This, as  
with the rest of my contributions to this thread, is not legal advice  
and all that, after all.)

> I'd make the claim that looking at a painting is "copying" the  
> painting into my brain so surely I'm not allowed to do that without a  
> license.  Looking and running, they're the same thing.

I realise you're using hyperbole here, but this is one of the  
fundamental reasons why computer programs are legally a special beast.   
You don't need a copyright licence to read a book--that doesn't involve  
reproducing the book.  But (at least before specific statutory  
provisions were introduced) that couldn't be said for computer  
programs.

As an aside, as a result of the Digital Agenda reforms, a licence may  
be required to display a painting in an art gallery.  The owner of the  
copyright in an artistic work has the exclusive right to communicate  
the work to the public: Copyright Act 1968 (Cth) s 31(1)(b)(iii),  
<http://scaleplus.law.gov.au/html/pasteact/0/244/0/PA000440.htm>.

> What if I hook my harddrive up as my primary storage?  Sure, it will  
> run *really* slow but it'll run.  I am "copying" the program into the  
> registers of the cpu one instruction at a time (or more if I have cpu  
> cache).

This then becomes a technical question, the same technical question  
that was considered in Sony v Stevens and AVRA v Warner.  In  
particular, in AVRA v Warner the Federal Court held that a DVD player,  
even though it reproduces each frame digitally in RAM, doesn't make a  
copy of the work in material form because there is never a substantial  
part of the DVD in the DVD player's RAM at any time (although that was  
in the context of a cinematograph film, not a computer program): [2001]  
FCA 1719 at [61]-[65],  
<http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1719.html>.

> I thought this whole "running is copying" argument had been thrown out  
> on its ear with the Sega vs Accolade case and widely recognised with  
> the "incidental copies" provisions of the DMCA and Digital Agenda  
> acts, but hey, you're the lawyer :)

Sega Enterprises Ltd v Accolade Inc, 977 F.2d 1510 (9th Cir. 1992),  
<http://www.eff.org/Legal/Cases/ 
sega_v_accolade_977f2d1510_decision.html> was a fair use case in  
relation to the reverse engineering of computer software for  
interoperability.  In that case, Accolade reverse engineered a part of  
a computer program, the copyright for which was owned by Sega, in order  
to create a game that would run on a Sega Genesis.  Sega sued Accolade  
for copyright infringement in reverse engineering its computer program.

For the court to consider the fair use argument (on which Accolade  
ultimately prevailed), the court needed to conclude that Accolade made  
a copy of Sega's computer program that was a prima facie breach of  
Sega's copyright and that 17 U.S.C. § 117 did not apply.  (As an aside,  
17 U.S.C. § 117 was not introduced by the Digital Millennium Copyright  
Act--it was a part of law well before that.)

In Australia, as there is no broad fair use right, the holding in Sega  
doesn't apply.  The Copyright Amendment (Computer Programs) Amendment  
Act 1999 did introduce some provisions in this regard, in particular s  
47D of the Copyright Act:  
<http://scaleplus.law.gov.au/html/pasteact/0/244/0/PA000790.htm>.   
Section 47H provides that a copyright owner cannot abridge the right  
granted by s 47D:  
<http://scaleplus.law.gov.au/html/pasteact/0/244/0/PA000830.htm>.

David.