[Date Prev][Date Next] [Thread Prev][Thread Next] [Date Index] [Thread Index]

Re: Vicam driver appears to contain misappropriated code

Nathanael Nerode writes:

>> Do you have any evidence to indicate that these byte streams contain
>> any copyrightable or otherwise protected content?
> They look creative to me.  I certainly couldn't write them independently, on 
> my own.  Under modern copyright law, everything is copyrighted by default, 
> unless it falls in one of the standard uncopyrightable categories.  It's not
> a "fact" and it's not an "idea".  
> If you show me evidence that it's a multiplication table, I'll retract that 
> statement.  It appears to be executable code based on the way it's loaded 
> into the camera.  Given the date of the camera's creation, it's not 
> pre-1988, so it's not public domain by lack of notice.

setup4[] and setup5[] could conceivably be firmware; the others are
pretty clearly some other kind of device command, or alternatively are
not copyrightable if they embody executable code.  In the absence of
an indication from the manufacturer or vendor (or from inspection of
the device), I tend to assume sequences of that size are configuration
writes rather than small firmware.  Given a particular mode of
operation, configuration writes are non-creative fact.

>> (It might be what 
>> the U.S. Copyright Act calls a "useful article".)
> That category doesn't provide any relevant exceptions to the exclusive 
> distribution right.  (It does restrict action to 1977 law.  Perhaps you know
> something about 1977 law.)  In any case, the same exceptions do not apply
> worldwide.

The US Copyright Office disagrees[1] about the impact of "useful
article" status.  Insofar as the device is pretty nearly useless
without these programs, and even European governments are realizing
that similar kinds of fair use are necessary for interoperability, I
do not see a problem with treating these bits as copyright-free until
someone demonstrates (or asserts under oath, such as in a legal
complaint) that they are copyrightable.

[1]- http://www.copyright.gov/circs/circ40.html#useful

>> Why do you say it 
>> is non-distributable in the first place?
> Copyrighted material without license from the copyright holder is
> non-distributable unless it is fair use/fair dealing.

You have made a rather large assumption to reach this conclusion, but
you did not identify it earlier.

Also, if you are going to exclude "useful article" status from
consideration, why include fair use or fair dealing, which are
similarly neither uniform nor universal?

Michael Poole

Reply to: