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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 ....".

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 
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 Titleserv’s 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 
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 Titleserv’s copy of the programs more responsive 
to the needs of
12 Titleserv’s 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.” Titleserv’s
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 Titleserv’s new Windows-based system, we note in passing 
that Titleserv
2 vigorously denies Krause’s allegation that it copied his programs into the 
new system. In
3 adjudicating Titleserv’s 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 Krause’s 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 Titleserv’s 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 Krause’s 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 Webster’s Third New International Dictionary 777 (1976). In use, its meaning 
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 
16 definition. Particularly as used in the law, the word “necessary” is 
ambiguous. According to
17 Black’s 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.” Black’s Law 
Dictionary 928 (5th
20 ed. 1979); Black’s Law Dictionary 1181 (rev. 4th ed. 1968).5 See also 
M’Culloch 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 Krause’s 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 
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.” Webster’s Third New 
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 
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 
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 Krause’s 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 
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 possessor’s 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 issue—the 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 
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 
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 Krause’s 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 
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 Titleserv’s 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 Titleserv’s 
alteration somehow
20 interfered with Krause’s access to, or ability to exploit, the copyrighted 
work that he authored, or
21 if the altered copy of Krause’s work were to be marketed by the owner of the 
copy. But on our
22 facts, we see no harm whatsoever to Krause’s enjoyment of his copyright. The 
changes made by
23 Titleserv were made only to its copies of Krause’s programs. Krause enjoyed 
no less opportunity
24 after Titleserv’s 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 Titleserv’s changes to its copy of Krause’s 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.


(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.)

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