[ohf-licenses] What if copyright didn't apply to binary executables?

[Patrick McNamara]

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Greg London wrote:
|> I wrote a piece in Free Software Magazine:
|> "What if copyright didn't apply to binary executables?"
|
| Very nice.
|
|> It was inspired by some discussions with Greg London about hardware
|> licenses and "functionality" versus "expression". I think it was Greg
|> who first suggested that binaries probably shouldn't have been covered
|> by copyright.
|
| I've been thinking about this for a while now,
| and my opinion may have changed over time.
|
| I don't have too much of a problem with a binary being
| considered a derivative. It's sort of like a translation
| into another language. Same work, different language.

In the english definition of derivative, a binary is a derivative of the
source.  Start with the source, pass it through some number of
steps/actions/changes and arrive at the binary.

However in the copyright space, a derivative must involve creative
process and my be copyrightable in its own right, seperate from the
source work(s).  A language translation done by a human would fit such
criteria (IMHO), however a programmatic translation of text, or of
source into binary, would not.  Otherwise, something as mundane as
zipping up a file or creating a tarball would create a separately
copyrightable derivative.

|
| However, I would think that -linking- to someone
| else's binary should NOT be considered a derivative.
| Because linking is a functional action.

I agree.  The use of a published interface to make use of compiled code
does not make a derivate, even if the code cannot do anything on its
own, without being attached to other code (as in the case of a library).

|
| Two binaries could be aggregated together in memory,
| their only connections are the links which connect them,
| which is purely a functional interface connection.
|

This is analogous to two chips being connected together by wires on a
circuit board.  The interface is defined and the connection by the two
is purely a functional use of that interface.

Now for the tricky spot.  We have been discussing only dynamic linking,
where the copyrighted work (library or chip) may be replaced with
another of the same interface.  What about static linking?  The
functional use of the copyrighted work has not changed, it is only
accesses via a defined interface.  However, the object can no longer be
replaced by another as it is now irreversibly packaged with the object
that uses it.  Does this make the new bundle a derivative?  I tend to
the not, in term of standard copyright law.

This situation does obviously impinge on the ability of downstream
consumers of the bundled to change and modify at will which is why some
of the (L)GPL language is the way it is, to try and protect that ability.

| But, that's just me. Obviously, the courts had something
| different to say about it.
|
|> (BTW, I put an acknowledgment to you at the end, Greg).
|
| That was very gracious of you.
| Thanks.
|
| Greg London
|
|
|
|
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|
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