Development of Creative Commons licenses

[Rob Myers <robmyers AT mac.com>]

IANAL but I am a software developer. ;-)

On 19 Mar 2005, at 01:15, drew Roberts wrote:

> Couldn't you build a dedicated peice of hardware that acted like MS 
> Office but
> had no software per se?

You can write a piece of *software* that acts like MS Office but has no 
code in it. The important thing for copyright is whether you are 
copying the original code, not whether your code is functionally 
equivalent (that's patents). Reverse engineering and functional 
equivalency aren't an issue. Copying or deriving are.

When Office is written, it is C++ code stored as human-readable ASCII 
on a hard disk. It is then translated to assembly code, then that 
assembly code is translated to object code. That is then linked. We're 
already three steps away from the original "writing". The linked code 
is transferred to a removable tape drive, couriered to the CD pressing 
plant, and scratched onto a sheet of glass as a series of pits. This 
glass is then pressed against metal foil which is glued between bits of 
plastic.

Once some poor soul buys the CD and takes it home, the metal and 
plastic is then spun at high speed under a laser, and this is 
interpreted as data which is copied onto another hard disk. When a user 
wishes to run the software, bits of the data on the disk are copied as 
electrical pulses held in optically etched patterns on silicon.

The original copyright has acted virally through all these derivations 
and translations. Like fan fiction. If we take a Java program that is 
produced the same way but compiled from bytecodes to native machine 
code by a JIT on loading, that (machine translated) work is a 
derivation (a translation) of the bytecodes, and so still copyrighted.

The medium that the code is recorded in isn't an issue any more than 
whether you photocopy, screenprint, scan or paint a photograph affects 
whether you're infringing the original copyright.  Nintendo's GameBoy 
range uses software distributed as ROM cartridges, for example. The 
same game may be available on an old Nintendo 64 cartridge or in a 
GameCube CD-Rom (Mario 64 for example). Copying one of these onto audio 
tape would still be copying. Arranging a series of stones in a Zen 
garden to encode the data in binary would still be copying. Machine 
translating it into a real language like Lisp would still be copying.

In this instance the medium is not the message, and whether software is 
stored temporarily or permanently on silicon isn't an issue. This is 
the same reason that every router on the net is a high-powered 
copyright infringement machine, btw. :-)

- Rob.