Re: What makes software copyrightable anyway?
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:
> >>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.
This doesn't sound like an application of that legal principle.
You don't get a paperback from a hardback, or a hardback from a
paperback. You produce each independently.
This legal principle seems more analogous to: If the hardback is
protected by copyright then pages ripped out of the hardback are
protected by copyright. The pages ripped out are not equivalent
to the hardback, but they carry the same protections.
> 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.
Well... the GPL does clarify what it means by a "work based on the Program"
in a fashion which I believe does incorporate transformed works. However,
you've asserted that this would not be the case under Brazilian law.
If that's so, it might very well be the case that under Brazilian law there
are anthologies which are not considered, under law, to be derivatives.
In this situation, for the GPL to grant you license to make copies, you
would have to rely on the GPL's grant to make verbatim copies of the
program. If the transformations needed to build the program are not
considered verbatim under Brazilian law, then the GPL fails to grant
license to make copies in those cases.
If I sincerely belived this to be the case, I'd consider it a bug in the GPL
and would report the details of why this is likely to be the case to the FSF.
Of course, if the transfomed copies are considered to be verbatim copies
under Brazilian law, then you have no problem. Or, if permission to
distribute verbatim copies always implies permission to distribute
anthologies which includes some part of those verbatim copies, then
you have no problem.
> Maybe I was more clear now?
I think so. Thanks,
--
Raul
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