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Re: GPL traitor !
From: |
Alexander Terekhov |
Subject: |
Re: GPL traitor ! |
Date: |
Thu, 14 May 2009 20:02:38 +0200 |
Alan Mackenzie wrote:
[... 17 USC 117 ...]
> No. Modifying an existing program is legal only for the specific
> purpose mentioned, namely to get the program to run. If the adaptation
> changed the program's functionality, it would not be an "essential step
> in the utilization ....".
http://caselaw.lp.findlaw.com/data2/circs/2nd/039303p.pdf
------
II. [C]reated as an essential step in the utilization of the computer program
in conjunction
9 with a machine
10 The next statutory factor Titleserv must satisfy addresses whether
Titleservs
11 modification of the programs was an essential step in the utilization of
the computer program[s]
12 in conjunction with a machine. The district court and the magistrate judge
both relied heavily
13 on our decision in Aymes v. Bonelli, 47 F.3d 23 (2d Cir. 1995) (Aymes II) in
finding that
14 Titleservs modifications qualified. Aymes II involved programs designed to
assist the inventory,
15 record-keeping, and sales functions of a chain of retail stores selling
swimming pools and pool
16 supplies. Id. at 24. The defendants, which were the users of the programs,
modified the
17 programs to keep them up-to-date and to ensure their compatibility with the
defendants
18 successive generations of computer systems. Id. at 26. The plaintiff, who
owned the copyright
19 in the programs, alleged that the defendants unauthorized modifications
infringed his copyright.
1 We concluded that the modifications were essential to the defendants
utilization of the programs
2 within the meaning of § 117(a)(1) because the adaptations were essential to
allow use of the
3 program[s] for the very purpose for which [they were] purchased. Id. at 27.
4 The modifications allegedly made by Titleserv to its copy of the programs
fall into four
5 main categories: (1) correcting programming errors or bugs, which
interfered with the proper
6 functioning of the programs; (2) changing the source code to add new clients,
insert changed
7 client addresses, and perform other routine tasks necessary to keep the
programs up-to-date and
8 to maintain their usefulness to Titleserv; (3) incorporating the programs
into the Windows-based
9 system Titleserv designed and implemented between 1997 and 1998; and (4)
adding capabilities,
10 such as the ability to print checks, and, to a limited degree, allowing
customers direct access to
11 their records, which made Titleservs copy of the programs more responsive
to the needs of
12 Titleservs business.
13 As for the first two types of modifications, a straightforward application
of Aymes II to
14 the undisputed facts establishes that these modifications constituted
essential step[s] in the
15 utilization of the computer program[s] in conjunction with a machine. The
fixing of bugs was
16 done so that the programs would continue to function. Without such fixing,
the programs would
17 not function properly. It cannot seriously be disputed that such fixing is
essential. Titleservs
18 modification of the source code to reflect such business changes as the
addition of new customers
19 and changed customer addresses also comes within the scope of the
modifications approved in
20 Aymes II, which were designed to keep the software in step with changes in
the defendants
21 business.
22 As for the third type of modifications, involving adaptation of the programs
so that they
1 would function on Titleservs new Windows-based system, we note in passing
that Titleserv
2 vigorously denies Krauses allegation that it copied his programs into the
new system. In
3 adjudicating Titleservs motion for summary judgment, however, we must
utilize the version of
4 the evidence most favorable to Krause, drawing all permissible inferences in
his favor. Cifarelli
5 v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). Utilizing that standard
to assume that Titleserv
6 did incorporate copyrighted matter from Krauses programs into its new
system, we nonetheless
7 conclude, following Aymes II, that such adaptation qualifies under §
117(a)(1) as an essential
8 step. In Aymes II, we reached the same conclusion as to the defendants
adaptation of their copy
9 of the software so that it would continue to function on the defendants new
computer system.
10 47 F.3d at 26-27.
11 The only category of Titleservs modifications requiring additional analysis
is the fourth
12 category: the addition of new features, such as check printing and providing
for direct client
13 access. Such changes were not strictly necessary to keep the programs
functioning, but were
14 designed to improve their functionality in serving the business for which
they were created.
15 Focusing on § 117(a)(1)s use of the word essential, Krause argues that an
adaptation or
16 change does not come within the protection of § 117(a)(1) unless it is truly
necessary to the
17 functioning of the system. He thus argues that, while the fixing of bugs may
be permitted
18 because such repairs are essential to keep the program operating,
adaptations that improve the
19 functionality of the system but are not required to keep it operational
cannot qualify.
20 We already implicitly rejected Krauses argument in Aymes II. In that case,
some of the
21 program changes approved by our ruling as falling within the protection of §
117(a)(1) had
22 nothing to do with enabling the programs to continue functioning; they
rather involved adapting
1 the programs to changes in the defendants business. For example, the Aymes
II defendants
2 changed product lines, from gas barbecues to ceiling fans to swimming pool
supplies, and the
3 alterations of the programs were designed to maintain the utility of the
programs in connection
4 with these changes in product lines. Joint App. at I2-3, Aymes II, 47 F.3d
23. Unless we were to
5 retreat from that ruling, we would be compelled to reject the narrow reading
of § 117(a)(1) which
6 Krause urges on us.
7 We see no reason to retreat from Aymes II. The statute is ambiguous on the
point in
8 question. The word essential is defined as necessary, indispensable, or
unavoidable. See
9 Websters Third New International Dictionary 777 (1976). In use, its meaning
varies
10 considerably from one context to another. For example, one might say it is
essential when
11 driving a car to stay alert. This does not mean it is impossible to drive a
car without being alert,
12 but rather stresses the importance of staying alert. Similarly, one might
ask an essential
13 question. This does not mean the question had to be asked, but rather that
it goes to the heart of
14 the matter.
15 Essential is often used as a synonym of necessary, as indicated by its
dictionary
16 definition. Particularly as used in the law, the word necessary is
ambiguous. According to
17 Blacks Law Dictionary, the word is susceptible of various meanings. It may
import absolute
18 physical necessity or inevitabilty, or it may import that which is only
convenient, useful,
19 appropriate, suitable, proper, or conducive to the end sought. Blacks Law
Dictionary 928 (5th
20 ed. 1979); Blacks Law Dictionary 1181 (rev. 4th ed. 1968).5 See also
MCulloch v. Maryland,
1 17 U.S. (4 Wheat.) 316, 388 (1819) (The word necessary, standing by itself,
has no inflexible
2 meaning; it is used in a sense more or less strict, according to the
subject.). The same ambiguity
3 inheres in the word essential, which in some of its meanings is effectively
synonymous with
4 necessary. We reject Krauses contention that the word essential can
apply only to a
5 modification without which the program could not function.
6 Moreover, Krause focuses too narrowly on the word essential. The meaning of
the
7 phrase an essential step in the utilization of the computer program is
equally dependent on the
8 word utilization. The dictionary defines utilize as to make useful,
turn to profitable
9 account or use, make use of, and convert to use. Websters Third New
International
10 Dictionary at 2525. This definition sheds little light on what the word
utilization means in the
11 context of § 117(a)(1). Utilization of a computer program might refer
exclusively to booting
12 and running the program, in which case only limited modification, such as
fixing bugs to prevent
13 the program from crashing, might qualify as an essential step in booting
or running the
14 program. On the other hand, utilization might refer more broadly to
mak[ing] [the program]
15 useful to the owner of the copy, in which case more extensive modification
that involved adding
16 new program features to enhance functionality might qualify as an essential
step in making the
17 program useful. Accordingly, even if the word essential is given a narrow
meaning,
18 encompassing only absolute necessity, § 117(a)(1) remains ambiguous because
the statute does
19 not clearly indicate for what end modifications must be absolutely necessary.
20 In arguing that § 117(a)(1) authorizes only adaptations absolutely necessary
to make a
21 program boot or run, Krause contends that his interpretation is required to
avoid rendering the
22 phrase in conjunction with a machine superfluous. His argument goes as
follows: Because a
1 computer program inevitably functions on a machine, the statutory words in
conjunction with a
2 machine would be tautological and unnecessary if given their ordinary
meaning. On the
3 assumption that Congress intends every portion of a statute to have meaning,
the phrase in
4 conjunction with a machine must therefore place an additional limitation on
the scope of §
5 117(a)(1). That limitation restricts the meaning of essential step to those
modifications
6 absolutely necessary to make a program boot and run.
7 Krause is mistaken in suggesting that the words in conjunction with a
machine are
8 tautological if given their plain meaning. Those words can serve to broaden §
117(a)(1) by
9 making clear that the utilization of a program does not need to be in
conjunction with what we
10 conventionally call a computer, but can be in conjunction with a range of
machines driven in part
11 by computer programs, such as automobiles, airplanes, and air conditioners.
Furthermore, even
12 if the statute used the phrase in conjunction with a computer, we would
see no reason to
13 ascribe specialized meaning to the phrase simply for the sake of avoiding
slight repetition in the
14 statutory text. Some repetition can help clarify the meaning of a statute,
and we are reluctant to
15 endorse an awkward reading of its words for no better reason than to satisfy
the canon of
16 construction that cautions against adopt[ing] a construction making another
statutory provision
17 superfluous. Hohn v. United States, 524 U.S. 236, 249 (1998). As we have
noted previously,
18 [g]eneral principles of statutory construction are notoriously unreliable
and should not take
19 precedence over more convincing reasons. Hakala v. Deutsche Bank AG, 343
F.3d 111, 116 (2d
20 Cir. 2003). The Supreme Court has recognized in particular that the
preference for avoiding
21 surplusage constructions is not absolute. Lamie v. United States Tr., 540
U.S. 526, 536 (2004).
22 We therefore reject Krauses argument and conclude that the phrase in
conjunction with a
1 machine does not cure the ambiguity of the statutory text.
2 Given the ambiguity of the text, we turn to the legislative history of §
117(a) for
3 guidance. As discussed above, Congress enacted the language proposed in the
CONTU Report
4 largely without alteration. The House Report simply states that § 117(a)
embodies the
5 recommendation of CONTU. H.R. Rep. No. 96-1307(I), at 23 (1980), reprinted
in 1980
6 U.S.C.C.A.N. 6460, 6482. We therefore look to the CONTU Report for
indications of
7 Congressional intent. See Aymes II, 47 F.3d at 26-27; see also Vault Corp. v.
Quaid Software
8 Ltd., 847 F.2d 255, 260-61 (5th Cir. 1988); Foresight Res. Corp. v.
Pfortmiller, 719 F. Supp.
9 1006, 1009 (D. Kan. 1989).
10 Krause asserts that the CONTU Report supports his interpretation of §
117(a)(1). He
11 contends the Commission was primarily concerned with compatibility as
between program and
12 computer, which was of particular concern at the time the Report was issued
in 1978, during the
13 early stages of personal computer development. His argument relies heavily
on one sentence in
14 the report, which says: Because of a lack of complete standardization among
programming
15 languages and hardware in the computer industry, one who rightfully acquires
a copy of a
16 program frequently cannot use it without adapting it to that limited extent
which will allow its
17 use in the possessors computer. CONTU Report at 13.
18 Other passages of the report, however, describe the right to modify programs
in a manner
19 that goes far beyond concern with compatibility and strongly suggests that
the writers of the
20 CONTU Report envisioned a loose concept of necessity that would encompass
our very
21 issuethe addition of features so that a program better serves the needs of
the customer for
22 which it was created. The report states:
1 Thus, a right to make those changes necessary to enable the use for which it
was
2 both sold and purchased should be provided. The conversion of a program from
3 one higher-level language to another to facilitate use would fall within this
right,
4 as would the right to add features to the program that were not present at
the time
5 of rightful acquisition.
6 Id. (emphasis added). Without question, the CONTU Report, in the italicized
text, specifically
7 contemplates protection for modifications adding features, rather than merely
securing continued
8 functioning of what was originally created. The CONTU Report thus
persuasively rebuts
9 Krauses narrow reading of § 117(a)(1), which would authorize only changes
needed to permit
10 the program to function.
11 The question remains whether the changes Titleserv made to its copies of
Krauses
12 programs come within § 117(a)(1)s broader concept of an essential step in
the utilization of the
13 computer program in conjunction with a machine. We can see no reason why
the modest
14 alterations to Titleservs copies of the programs should not qualify. We
need not address
15 whether other types of improvements might be too radical, or might fail to
qualify because they
16 somehow harm the interests of the copyright owner. The sentence of the CONTU
Report after
17 the one speaking of the right to add features states that the rights granted
by § 117(a) could only
18 be exercised so long as they did not harm the interests of the copyright
proprietor. CONTU
19 Report at 13. A different scenario would be presented if Titleservs
alteration somehow
20 interfered with Krauses access to, or ability to exploit, the copyrighted
work that he authored, or
21 if the altered copy of Krauses work were to be marketed by the owner of the
copy. But on our
22 facts, we see no harm whatsoever to Krauses enjoyment of his copyright. The
changes made by
23 Titleserv were made only to its copies of Krauses programs. Krause enjoyed
no less opportunity
24 after Titleservs changes, than before, to use, market, or otherwise reap
the fruits of the
1 copyrighted programs he created.
2 Taking into account the ambiguity of the concepts of essential and
utilization, and
3 construing § 117(a) in light of the CONTU Report which Congress followed, we
conclude that
4 Titleservs changes to its copy of Krauses programs were essential step[s]
in the utilization of
5 the computer program[s] in conjunction with a machine within the meaning of
§ 117(a)(1).
------
You are on the losing side (as always), Alan.
regards,
alexander.
--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)
- Re: GPL traitor !, (continued)
- Re: GPL traitor !, Joerg Schilling, 2009/05/20
- Re: GPL traitor !, Hyman Rosen, 2009/05/19
- Re: GPL traitor !, Joerg Schilling, 2009/05/20
- Re: GPL traitor !, Peter Köhlmann, 2009/05/19
- Re: GPL traitor !, Alan Mackenzie, 2009/05/18
- Re: GPL traitor !, Hyman Rosen, 2009/05/18
- Re: GPL traitor !, Peter Köhlmann, 2009/05/15
- Re: GPL traitor !, Alan Mackenzie, 2009/05/14
- Re: GPL traitor !,
Alexander Terekhov <=
- Re: GPL traitor !, ZnU, 2009/05/14
- Re: GPL traitor !, Alan Mackenzie, 2009/05/15
- Re: GPL traitor !, Hyman Rosen, 2009/05/15
- Re: GPL traitor !, ZnU, 2009/05/15
- Re: GPL traitor !, Rjack, 2009/05/13
- Re: GPL traitor !, Alan Mackenzie, 2009/05/11
- Re: GPL traitor !, Hyman Rosen, 2009/05/11
- Re: GPL traitor !, Alan Mackenzie, 2009/05/11
- Re: GPL traitor !, Hyman Rosen, 2009/05/11
- Re: GPL traitor !, Alan Mackenzie, 2009/05/11