Subject: Re: Assistance/advice in choosing a license for POV-Ray 4.0
From: Chris Cason <ccosilist@povray.org>
Date: Mon, 14 Nov 2005 19:52:04 +1100

Rod Dixon, J.D., LL.M. wrote:
> For reference: take a look at a couple of cases like  Lewis Galoob Toys
> v. Nintendo and/or Microstar v. Formgen.

The latter has a particularly interesting statement:

 http://cyber.law.harvard.edu/openlaw/DVD/cases/Micro_Star_v_Formgen.html

  "... we have developed certain criteria a work must satisfy in order to
   qualify as a derivative work. One of these is that a derivative work
   must exist in a "concrete or permanent form, ..."

Presuming that a work that exists only whilst it remains in RAM would not
be considered 'concrete or permanent', it would follow that at least in
the USA loading a shared library could not create a derivative work. Of
course there may be case law that makes my above presumption invalid, in
which case I'd be interesting in knowing of it.

On a tangential subject, and thinking of my prior statement that it may
not be possible to protect against misuse of code that is dynamically
loaded without use of a linker (per se), something just occurred to me.

I seem to recall that a number of years ago, there was a case (perhaps in
Australia, if not elsewhere as well) where a court was called upon to
decide whether or not the act of loading a program into memory from a
storage medium could be considered a copyright infringement, given the
fact that doing so by necessity requires that the program be 'copied'.
My recollection is that the court found that it was not a violation
because by its nature it was necessary to load it into RAM to be able to
use it.

What I am hazy on is whether or not the decision to allow this was based
on whether or not the user already had the right to use the program. If
they did then certainly loading it into memory would be logical (though
if they did have the right to use it then I'm not sure what the case
would have been about ...)

Does anyone recall what/where this case was ? And/or does anyone have any
opinion on whether or not the act of loading a module into memory - where
no license is held for use of that module - would be accepted by e.g. USA
courts as 'making a copy' ?

-- Chris