Subject: Re: Assistance/advice in choosing a license for POV-Ray 4.0
From: "Rod Dixon, J.D., LL.M." <>
Date: Mon, 14 Nov 2005 10:59 -0500

You are probably thinking of the Mai Systems case wherein the 9th Circuit 
held that loading copyright-protected software into RAM creates a copy of 
the program and, thereby, implicates the rights of the copyright holder.  
This case is not helpful to you because we are passed this point in your 
hypo and ASSUME that the rights of the copyright holder are 
probablyimplicated, but the issue is - - to what end? i.e. Is there a 
creation of a derivative work that violates the license (that you have 

- Rod
Rod Dixon

...... Original Message .......
On Mon, 14 Nov 2005 19:52:04 +1100 Chris Cason <> wrote:
>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:
>  "... 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