5 ms·

EFF to Ninth Circuit: No Software Exception to Traditional Copyright Limits

184 points by nfriedly 3y ago

shmerl 3y ago
EFF is right. Copyright should be only limited, not expanded. It's already way too overreaching.
killingtime74 3y ago
TLDR this is their argument. Have to see if any court or congress accepts it.
freedomben 3y ago
If you haven't read it, I highly recommend Cory Doctorow's book "The Internet Con: How to Seize the Means of Computation." I originally had low expectations that anybody would have a reasonable answer, and mainly purchased it to support the author making it available DRM free, but have been very impressed with the analysis. Relevant to this issue, Cory discusses how this (ab)use of copyright is what enables gigantic tech companies and walled gardens, because competing with them is not a technical problem, but rather a legal problem. He's right! (At least for now until the wet dreams of the DRM people are realized and there's hardware DRM baked into everything). If people could without fear of lawyers build stuff, big tech would have to compete on merits and user experience rather than wielding armies of IP lawyers and legal threats. [1]: https://craphound.com/internetcon/ https://craphound.com/internetcon/
kmeisthax 3y ago
>Thus, the user files were “substantially similar” because they functioned as sequels to the video game itself—specifically the story and principal character of the game. If the user files had told a different story, with different characters, they would not be derivative works. For example, a company offering a Lord of the Rings game might include tools allowing a user to create their own character from scratch. If the user used the tool to create a hobbit, that character might be considered a derivative work. A unique character that was simply a 21st century human in jeans and a t-shirt, not so much. Not necessarily - the game engine code is also independently copyrightable separate from the story the game is going to tell. Writing a completely different game using that code - even if you just distribute level files - might still be an infringement. The analogy given by the EFF also doesn't match and is subtly wrong. The unique character would still be made out of game assets you do not own; however, compilations of specific copyrighted works can be independently copyrighted without being considered a derivative of their components[0]. That being said, the EFF's amicus brief is really good and I agree with all of it, so I'm obviously expecting it to be shot down by a court system that consistently insists on treating copyright as a federal contempt of business model tort. Remember, it took Google like a decade just to get Oracle off its back for the crime of stealing... 30 function declarations. No actual code, just names and argument types. Anyway, do we know what Oracle was actually suing Rimini for? [0] e.g. that one bloke who copyrighted his MTG deck to troll the Copyright Office
- aldonius 3y ago
  > Anyway, do we know what Oracle was actually suing Rimini for? Making money in the Oracle ecosystem without Oracle getting a cut, presumably :)
- hn_acker 3y ago
  > Not necessarily - the game engine code is also independently copyrightable separate from the story the game is going to tell. Writing a completely different game using that code - even if you just distribute level files - might still be an infringement. 1. Don't conflate the game engine code with the assets made available by the game engine. 2. Depending on how the third-party levels are designed, the third-party levels may infringe on the copyright of the original game's levels, but can't infringe on the copyright of the engine code, unless the level files bundle the engine code. Copying (or similarity that almost resulted from copying) is a prerequisite to copyright infringement [1]: > To win a claim of copyright infringement in civil or criminal court, a plaintiff must show he or she owns a valid copyright, the defendant actually copied the work, and the level of copying amounts to misappropriation. If the terms on the game engine restrict what people can make with the game engine or how people can share what they make with the game engine, then the terms on the game engine go beyond the scope of copyright. An EULA can do that. Any contract that isn't just about copyright can do that. [1] https://en.wikipedia.org/wiki/Substantial_similarity#Substantial_similarity_in_copyright_infringement https://en.wikipedia.org/wiki/Substantial_similarity#Substan...
jauntywundrkind 3y ago
The existing precedent seems sensible, > For decades, software developers have relied, correctly, on the settled view that a work is not derivative under copyright law unless it is "substantially similar" to a preexisting work in both ideas and expression. To say that anything we might come up with is derivative because it happens to target some other API or system would eliminate almost all ability to create, in the software world especially. What we build stop a thing is our thing.
- Pannoniae 3y ago
  This is most likely very unpopular opinion but the GPL also relies on this overly broad interpretation which leaves a bad taste in my mouth. In short, the GPL considers linking your program with it a derivative work, even if the GPL program is not distributed alongside yours. There's some limitations on it which I'm not really qualified to define, but those roughly boil down to that if you use it over a "generic interface" (network, or calling it as a process) then it doesn't count as a derivative work. The massive problem with this is that it's a huge overreach. You are not distributing anything from their program (only the symbol names in the binary, which shouldn't be considered a meaningful amount of original work) but you are obliged to follow the terms of the licence to interoperate with a GPL-licenced program. Granted, this is not a huge problem in practice because the GPL specifically is not used by abusive corporations much, but a similar issue happens with the enforcement of "terms of service"-s based on clickwrap "contracts" you never actually agreed to when you visit a website. Those also argue that not following their ToS also counts as either redistribution of their copyrighted work, or unauthorized access to their systems, both are huge overreaches.
  - jevoten 3y ago
    Does it in fact "rely" on it, or does that merely expand its scope? Even if its claims of what is "derivative" were diminished to exclude linking/API calls, the GPL would survive, albeit as slightly less viral.
    - Pannoniae 3y ago
stubish 3y ago
New legislation will trump court rulings, and I can't see this one lasting long with Right to Repair legislation happening. Right to Repair requires making compatible versions of software.
- jauntywundrkind 3y ago
  The idea that states should have some of their own industrial/consumer negotiating-power/say is very very new. Interesting to see it kicking in, happening in bits & bobs, but also so slow. And so many states just make up total horseshit as they please, running afoul of good sense & lacking any limitations. Books being challenged and banned, wild social media laws bossing companies around as they please all sort of wild shit trying desperately desperately to re-aasert itself after a Manifesto fo Cyberspace era has begun to offend particular people in their state. All it takes is one or two absolutely off the wall federal court rulings to totally upturn the cart & lay bedlam to how stuff can get made. The state based system is interesting, but over it all is some federal judges picking what they please decisions to make basically immutable & un-upturnable.
- dataflow 3y ago
  > I can't see this one lasting long with Right to Repair legislation happening I can't see them lasting together either, but that's because I don't see serious Right to Repair legislation happening.
  - mulmen 3y ago
    Is it really necessary to make these kinds of comments? What good comes from spreading negativity? Are you hoping this encourages someone else to be equally dismayed?
    - Bjartr 3y ago
      What good comes from avoiding discussion of possible negative outcomes? I'd rather this thread go down the path of what obstacles exist in the face of realizing right to repair in the long term over being an echo chamber about how good it is or something like that.
GoblinSlayer 3y ago
Did Micro Star really infringe on the Duke Nukem story? The maps were sequels and copied only general theme Duke Nukem story - a Los Angeles shooter with guns and grenades. But that sounds too generic, Rambo, Dredd or Terminator might do something similar.

184 points by nfriedly 3y ago

shmerl 3y ago

EFF is right. Copyright should be only limited, not expanded. It's already way too overreaching.

killingtime74 3y ago

TLDR this is their argument. Have to see if any court or congress accepts it.

freedomben 3y ago

If you haven't read it, I highly recommend Cory Doctorow's book "The Internet Con: How to Seize the Means of Computation." I originally had low expectations that anybody would have a reasonable answer, and mainly purchased it to support the author making it available DRM free, but have been very impressed with the analysis. Relevant to this issue, Cory discusses how this (ab)use of copyright is what enables gigantic tech companies and walled gardens, because competing with them is not a technical problem, but rather a legal problem. He's right! (At least for now until the wet dreams of the DRM people are realized and there's hardware DRM baked into everything). If people could without fear of lawyers build stuff, big tech would have to compete on merits and user experience rather than wielding armies of IP lawyers and legal threats. [1]: https://craphound.com/internetcon/ https://craphound.com/internetcon/

kmeisthax 3y ago

>Thus, the user files were “substantially similar” because they functioned as sequels to the video game itself—specifically the story and principal character of the game. If the user files had told a different story, with different characters, they would not be derivative works. For example, a company offering a Lord of the Rings game might include tools allowing a user to create their own character from scratch. If the user used the tool to create a hobbit, that character might be considered a derivative work. A unique character that was simply a 21st century human in jeans and a t-shirt, not so much. Not necessarily - the game engine code is also independently copyrightable separate from the story the game is going to tell. Writing a completely different game using that code - even if you just distribute level files - might still be an infringement. The analogy given by the EFF also doesn't match and is subtly wrong. The unique character would still be made out of game assets you do not own; however, compilations of specific copyrighted works can be independently copyrighted without being considered a derivative of their components[0]. That being said, the EFF's amicus brief is really good and I agree with all of it, so I'm obviously expecting it to be shot down by a court system that consistently insists on treating copyright as a federal contempt of business model tort. Remember, it took Google like a decade just to get Oracle off its back for the crime of stealing... 30 function declarations. No actual code, just names and argument types. Anyway, do we know what Oracle was actually suing Rimini for? [0] e.g. that one bloke who copyrighted his MTG deck to troll the Copyright Office

aldonius 3y ago
> Anyway, do we know what Oracle was actually suing Rimini for? Making money in the Oracle ecosystem without Oracle getting a cut, presumably :)
hn_acker 3y ago
> Not necessarily - the game engine code is also independently copyrightable separate from the story the game is going to tell. Writing a completely different game using that code - even if you just distribute level files - might still be an infringement. 1. Don't conflate the game engine code with the assets made available by the game engine. 2. Depending on how the third-party levels are designed, the third-party levels may infringe on the copyright of the original game's levels, but can't infringe on the copyright of the engine code, unless the level files bundle the engine code. Copying (or similarity that almost resulted from copying) is a prerequisite to copyright infringement [1]: > To win a claim of copyright infringement in civil or criminal court, a plaintiff must show he or she owns a valid copyright, the defendant actually copied the work, and the level of copying amounts to misappropriation. If the terms on the game engine restrict what people can make with the game engine or how people can share what they make with the game engine, then the terms on the game engine go beyond the scope of copyright. An EULA can do that. Any contract that isn't just about copyright can do that. [1] https://en.wikipedia.org/wiki/Substantial_similarity#Substantial_similarity_in_copyright_infringement https://en.wikipedia.org/wiki/Substantial_similarity#Substan...

jauntywundrkind 3y ago

The existing precedent seems sensible, > For decades, software developers have relied, correctly, on the settled view that a work is not derivative under copyright law unless it is "substantially similar" to a preexisting work in both ideas and expression. To say that anything we might come up with is derivative because it happens to target some other API or system would eliminate almost all ability to create, in the software world especially. What we build stop a thing is our thing.

Pannoniae 3y ago
This is most likely very unpopular opinion but the GPL also relies on this overly broad interpretation which leaves a bad taste in my mouth. In short, the GPL considers linking your program with it a derivative work, even if the GPL program is not distributed alongside yours. There's some limitations on it which I'm not really qualified to define, but those roughly boil down to that if you use it over a "generic interface" (network, or calling it as a process) then it doesn't count as a derivative work. The massive problem with this is that it's a huge overreach. You are not distributing anything from their program (only the symbol names in the binary, which shouldn't be considered a meaningful amount of original work) but you are obliged to follow the terms of the licence to interoperate with a GPL-licenced program. Granted, this is not a huge problem in practice because the GPL specifically is not used by abusive corporations much, but a similar issue happens with the enforcement of "terms of service"-s based on clickwrap "contracts" you never actually agreed to when you visit a website. Those also argue that not following their ToS also counts as either redistribution of their copyrighted work, or unauthorized access to their systems, both are huge overreaches.
- jevoten 3y ago
  Does it in fact "rely" on it, or does that merely expand its scope? Even if its claims of what is "derivative" were diminished to exclude linking/API calls, the GPL would survive, albeit as slightly less viral.
  - Pannoniae 3y ago

stubish 3y ago

New legislation will trump court rulings, and I can't see this one lasting long with Right to Repair legislation happening. Right to Repair requires making compatible versions of software.

jauntywundrkind 3y ago
The idea that states should have some of their own industrial/consumer negotiating-power/say is very very new. Interesting to see it kicking in, happening in bits & bobs, but also so slow. And so many states just make up total horseshit as they please, running afoul of good sense & lacking any limitations. Books being challenged and banned, wild social media laws bossing companies around as they please all sort of wild shit trying desperately desperately to re-aasert itself after a Manifesto fo Cyberspace era has begun to offend particular people in their state. All it takes is one or two absolutely off the wall federal court rulings to totally upturn the cart & lay bedlam to how stuff can get made. The state based system is interesting, but over it all is some federal judges picking what they please decisions to make basically immutable & un-upturnable.
dataflow 3y ago
> I can't see this one lasting long with Right to Repair legislation happening I can't see them lasting together either, but that's because I don't see serious Right to Repair legislation happening.
- mulmen 3y ago
  Is it really necessary to make these kinds of comments? What good comes from spreading negativity? Are you hoping this encourages someone else to be equally dismayed?
  - Bjartr 3y ago
    What good comes from avoiding discussion of possible negative outcomes? I'd rather this thread go down the path of what obstacles exist in the face of realizing right to repair in the long term over being an echo chamber about how good it is or something like that.

GoblinSlayer 3y ago

Did Micro Star really infringe on the Duke Nukem story? The maps were sequels and copied only general theme Duke Nukem story - a Los Angeles shooter with guns and grenades. But that sounds too generic, Rambo, Dredd or Terminator might do something similar.