Re: Vicam driver appears to contain misappropriated code

[Nathanael Nerode <neroden@fastmail.fm>]

Michael Poole wrote:

> 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.
  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Where on Earth do you get this idea?  This is completely contrary to
everything I have ever heard about copyright law, so I'd really like to see
some legal references.

To my knowledge, executable code is copyrightable in general provided it is
not the only possible (or only reasonable) way to express the needed
execution steps.

If it is the only reasonable way, then idea/expression merger makes it
non-copyrightable.  If it is not, then that is not the case -- it contains
creative elements, and it is copyrighted material.

> 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,

"Copyright does not protect the mechanical or utilitarian aspects of such
works of craftsmanship. It may, however, protect any pictorial, graphic, or
sculptural authorship that can be identified separately from the
utilitarian aspects of an object"

Ah.  You're suggesting that the programs are *purely* utilitarian and have
*no* non-utilitarian elements.  I don't know about this.  From what I've
seen, the vast majority of programs have non-utilitarian elements even in
object code form.  I'm inclined to assume they have them unless there's some
evidence that they don't.

That's interesting.  It seems like an arguable case.  I am not aware of any
courts which have used the "useful article" distinction in a software case,
but you probably know something I don't.

> and even European governments are realizing 
> that similar kinds of fair use are necessary for interoperability,

Would be nice.  Interoperability exceptions are where we should be looking
here.

The scope of interoperability exceptions is something about which I do not
know very much.  I *do* know that the reverse engineering lawsuits which
were successfully defended involved "Chinese wall" methodology, which
attempts to guarantee (and if done correctly, does guarantee) that the only
replicated material is the *essential* material.

This was not done by this method.

> 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.

Oh, the "this is copyrighted material" and "this is not fair use"
assumption?  Yes.

> 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?

The parts of that status to which you are referring appear to be part of the
question of what is eligible for copyright, actually.  I'm happy to
consider them, but it seems unlikely to cover anything not covered by the
idea/expression merger doctrine.

> Michael Poole

-- 
Nathanael Nerode  <neroden@fastmail.fm>

Bush admitted to violating FISA and said he was proud of it.
So why isn't he in prison yet?...