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

[Terry Hancock]

Patrick McNamara wrote:
> 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.

Careful! There's a difference between what makes logical sense and what
the courts decided. US law (and other jurisdictions) consider
_precedent_ to be important (i.e. past decisions are used to judge
current decisions).

Anyway, in this case, the courts have decided that copyright does apply
to binaries. So the bundle you describe _is_ a copyrighted derivative work.

Whether it "should be" (in a hypothetical, more rational jurisdiction)
is a separate question.

Of course, I really was not trying to challenge the existing decision --
in many ways it's a fortuitous decision, though not without pitfalls.

The question really is "what does this mean for us?"

There seems to be little question that most hardware products are NOT
considered to be copyrighted derivatives of their designs (and I've
heard some good arguments for why it should stay that way), but that's
why a conventional "soft" copyleft doesn't do us much good (and I would
argue that, since copyleft introduces some inconveniences of its own,
that it should be not be used if it doesn't achieve its purpose).

Cheers,
Terry

-- 
Terry Hancock (hancock at AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com