Copyright's reach is already far too broad, and courts have no business expanding it any further, particularly where that reframing will undermine adversarial interoperability.
If a work is derivative, it may infringe the copyright in the preexisting work from which it, well, derives.
Thanks to that rule, software developers can build innovative new tools that interact with preexisting works, including tools that improve privacy and security, without fear that the companies that hold rights in those preexisting works would have an automatic copyright claim to those innovations.
That's why EFF, along with a diverse group of stakeholders representing consumers, small businesses, software developers, security researchers, and the independent repair community, filed an amicus brief in the Ninth Circuit Court of Appeals explaining that the district court ruling is not just bad policy, it's also bad law.
Court after court has confronted the challenging problem of applying copyright to functional software, and until now none have found that the copyright monopoly extends to interoperable software absent substantial similarity.
The district court's holding relied heavily on an erroneous interpretation of a 1998 case, Micro Star v. FormGen. In that case, the plaintiff, FormGen, published a video game following the adventures of action hero Duke Nukem.
The game included a software tool that allowed players themselves to build new levels to the game and share them with others.
Micro Star downloaded hundreds of those user-created files and sold them as a collection.
When FormGen sued for copyright infringement, Micro Star argued that because the user files didn't contain art or code from the FormGen game, they were not derivative works.
T]he work that Micro Star infringes is the [Duke Nukem] story itself-a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime.
A copyright owner holds the right to create sequels and the stories told in the [user files] are surely sequels, telling new tales of Duke's fabulous adventures.
If the user files had told a different story, with different characters, they would not be derivative works.
A company offering a Lord of the Rings game might include tools allowing a user to create their own character from scratch.
If the user used the tool to create a hobbit, that character might be considered a derivative work.
A unique character that was simply a 21st century human in jeans and a t-shirt, not so much.
Still, even confined to its facts, Micro Star stretched the definition of derivative work.
By misapplying Micro Star to purely functional works that do not incorporate any protectable expression the district court rewrote the definition altogether.
Defenders of the district court's approach might argue that interoperable software will often be protected by fair use.
As copyrightable software is found in everything from phones to refrigerators, fair use is an essential safeguard for the development of interoperable tools, where those tools might indeed qualify as derivative works.
Many developers cannot afford to litigate the question, and they should not have to just because one federal court misread a decades-old case.
This Cyber News was published on www.eff.org. Publication date: Mon, 11 Mar 2024 23:43:05 +0000