Re: What makes software copyrightable anyway?
Raul Miller wrote:
>On 5/11/05, Humberto Massa <humberto.massa@almg.gov.br> wrote:
>
>>Raul Miller wrote:
>>
>>>On 5/11/05, Humberto Massa <humberto.massa@almg.gov.br> wrote:
>>>
>>>>Nope. Binaries are the same work as (the anthology of) their
>>>>sources, in the eye of the Law 9609/98.
>>>If I understand you correctly, this means that under Brazilian
>>>law, distribution of binaries would satisfy a legal requirement
>>>that source be distributed.
>>>
>>No, because a legal requirement that source be distributed (as in
>>GPL section 3) is exactly that: a requirement that the *source* is
>>distributed. Not less. The fact that the source is *equivalent* to
>>the (corresponding) binary WRT copyright law has nothing to do
>>with the requirement.
>
>
>But if they're equivalent with respect to copyright law, they are
>equivalent for license grants under copyright law.
>
>>We have a "brocardo" (legal axiom) in our doctrine: "He who can do
>>more, can do less" (horrid translation to "quem pode mais, pode
>>menos" ["Quién puede más, puede menos" in Spanish]). So, if the
>>binary is the result of an automated, non-easily-reversible
>>process over the source, and if you grant me the right to
>>distribute the source (ie, I can do more), you are implicitly
>>granting me the right to distribute the binary (ie, I can do
>>less). Now, you can in the conditions to your grant, explicit that
>>if I am distributing it in another form, then I must distribute it
>>in the source form (or do at least one of the things section 3
>>enumerates, in the case of the GPL).
>
>
>Ok, this doesn't sound like the source is equivalent to the binary
>but that the binary is protected the same way the source is. In
>other words, you probably have a special legal category for
>"derivative which is not creative enough to be granted copyright
>protection which is distinct from the original".
Not really. The work is the content, not the form. Suppose two
(dead-tree) copies of my book "How to Die...", one being a
hardcover, and the other begin a paperback. Suppose further that the
imagery in the cover, etc are identical in both books.
The work, on which I grant copyright licenses, is the contents of
the book, its sequence of words and illustrations, not the form.
The two books are only ONE work WRT copyright law. When we do a
translation, for instance, from Portuguese to English, the
translator is doing a derivative work because he has to
intelectually choose the words he will use in the other language, in
a non-automatable fashion.
If I grant RMPH the right to publish my work, without restriction of
form, then they can get my text, pass it thru Babelfish, and publish
it in English or German or Japonese, as long as they don't modify
it.
Now, when I grant them the right to publish my work, I usually
*will* restrict the form with clauses as such: "RMPH can publish
this book verbatim, in the original Portuguese language, with this
exact typesetting, and its cover must be made of leather with
gold-plated letters and drawings." This is where resides the
difference between binary and source: form/medium. And form/medium
is not part of the work, it is as external to it as is the material
of the cover of a book.
This way, you grant the exact same protections to hello_world.c and
to hello_world because they are the same work, but the author has
the option to specify the form/medium: "you can only redistribute
hello_world.c in its verbatim source code form by any medium or in
ELF compiled with gcc form, and the distribution medium is a 3.5in
diskette."
>
>In this case, I'd assert that the word "derivative" in American law
>should be translated such that it includes (rather than excludes)
>this concept from Brazilian law.
I am not convinced of this, either: the word "transformation" was in
the quotation of 17USC101 WRT derivations. And no case law presented
in those threads lead me to believe that automated transformations
are to be regarded as derivative works.
>
>>>If this is really the case, the GPL is just a more complex
>>>version of
>
>the BSD license, under Brazilian law.
>
>>Nope. Again, what exactly are you trying to know?
>
>
>I'm trying to establish what the words you're using mean.
Maybe I was more clear now?
>
>Thanks,
>
--
HTH
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