Re: SFLC is SOL

[Hyman Rosen]

On 4/12/2010 8:36 PM, amicus_curious wrote:
> Now consider that the binary form of a software
> program is the image. Then the computer used to compile the software
> binary is, in effect, the camera and the source code is the directions
> on where to stand and where to point the camera. Is that source code
> protected as a unique expression, too? I don't think that question has
> been answered in court as yet.

Here's what the Copyright Office Practices manual says:
<http://ipmall.info/hosted_resources/CopyrightCompendium/chapter_0300.asp>
    321.03 Relationship between source code and object code.
    The Copyright Office considers source code and object code
    as two representations of the same computer program. For
    registration purposes, the claim is in the computer program
    rather than in any particular representation of the program.
    Thus separate registrations are not appropriate for the
    source code and object code representations of the same
    computer program. However, where a work in source code is
    registered in unpublished form, and the published version
    of the same work is submitted for registration in object
    code form, registration will be made.

This is rather similar, perhaps not coincidentally, to the
GPL's definition of source code as being the preferred form
for making changes. In any case, object code produced by a
mechanical translation of source code is the same work as
the source code for copyright purposes (not counting other
works which may be incorporated into the object code as part
of the translation process).

> If you go back to the first principles and see where the copyright is to
> protect the artist's expression and reason that is mainly due to
> protecting the artist's income from his work, the problem gets even more
> cloudy when there is no financial benefit accruing to the artist in the
> open source world. No damage, no compensation in the contracts world,
> hence the insistence that the GPL is not a contract.

<http://www.cafc.uscourts.gov/opinions/08-1001.pdf>
In the JMRI decision, the CAFC said:
    Copyright licenses are designed to support the right to
    exclude; money damages alone do not support or enforce
    that right. The choice to exact consideration in the
    form of compliance with the open source requirements of
    disclosure and explanation of changes, rather than as a
    dollar-denominated fee, is entitled to no less legal
    recognition. Indeed, because a calculation of damages
    is inherently speculative, these types of license
    restrictions might well be rendered meaningless absent
    the ability to enforce through injunctive relief.