Computer Law 2018 6th class: Open Source

February 6 Quiz

1. What cause(s) of action did Autodesk assert against Vernor. 17 U. S 1. What cause(s) of action did Autodesk assert against Vernor? 17 U.S.C. § 501 (copyright infringement). No contract claim, because Vernor did not agree to the EULA. 2. What defenses did Vernor assert? 17 U.S.C. § 109(a), 17 U.S.C. § 117, Copyright Misuse. “Because Vernor did not purchase the Release 14 copies from an owner, he may not invoke the first sale doctrine, and he also may not assert an essential step defense on behalf of his customers”. .

3. What cause(s) of action did Oracle assert against UsedSoft GmbH and which exception(s) did UsedSoft GmbH assert? Article 4.1 (a) and 4.1(c) of Directive 2009/24 as transposed to the German Copyright Act (causes of action are in Art. 69f and 97-100 of the German Copyright Act). [include link to German copyright act] Exception(s) Asserted: Exhaustion principle as transposed to the German Copyright Act (first sale doctrine in the EU, Article 4(2) of Directive 2009/24, under which distribution right of copyright owner will be exhausted by first sale within the EU), and essential steps doctrine as transposed to the German Copyright Act (Article 5(1) of directive 2009/24).

4. What elements are courts looking for to determine if a transaction qualifies as a sale making the recipient of a software copy its "owner" for purposes of Section 109(a) of the U.S. Copyright Act? Please list the elements. - transfer of possession perpetually - agreement on lump sum price - absence of "sales atypical restrictions" such as requiring return or destruction of software copy at some specified time, prohibiting copying of software (these elements have been derived from Vernor v. Autodesk and other cases)

5. Which of the following transactions likely qualify as a sale of a software copy for purposes of Section 109 of the U.S. Copyright Act? (pick all true statements) a. Offering a disk for a one-year term for a one time fee, where customers must delete the software from their device and return the disk at the end of the rental agreement. b. Offering access to hosted software, accessible online, for a recurring monthly fee. c. Offering access to hosted software, accessible online, perpetually for a one time fee. d. Offering a disk with software, for a one time fee, subject to a shrink wrap license agreement that includes limitations of licensor’s liability and warranty disclaimers but no other material restrictions. e. Offering, for a one time fee, a fitness tracker with preinstalled software that connects to a mobile app, which can be downloaded free of charge to a smart phone, and which can connect to hosted software perpetually; during the installation process, users have to click "accept" on an end user license agreement that declares that all software is licensed only, not sold, and can be used only in connection with the fitness tracker. (1) preinstalled software copy on the fitness tracker (2) mobile app that is available for download (3) server-side software that can be accessed remotely

Topic: Open Source Software

Assignment: 1. Please prepare an outline of the rights and remedies that Cole Codewriter has against RIM, RAM and Rolf Ringer under U.S. copyright law and the GPL vs. 2 based on the following facts: Cole Codewriter volunteers in his free time for the Linux project. He wrote many improvements and adaptations to the code that were accepted by the Linux project managers. Cole likes the GPL vs. 2 and Linus Thorvald's take on these license terms. One day, he finds out that the operating system (called "R2D2") on his new RIM phone is based on Linux, but he is prompted to accept a proprietary license agreement that gives no attribution to the Linux team and does not apply the GPL vs. 2. Cole is irritated and wants to sue RIM (the maker of the phone), RAM (the software company that licenses R2D2 to RIM) and his co-worker Rolf Ringer, who has the same phone as Cole and always annoyed Cole because he doesn't believe in open source code licensing. 2. Please review the U.S. Patent Act, 35 U.S.C., and answer the following questions: 2.1 Is or should software be protected under patent law, given the wording of Section 101? 2.2 Could the legal mechanisms on which “copyleft” and the open source code movement are founded work with patent law as well as with copyright law? Prepare a list of legal considerations for discussion in class.

Cole Codewriter vs RIM (phone maker): Rights and remedies under U. S Cole Codewriter vs RIM (phone maker): Rights and remedies under U.S. copyright law: 1. Cause of action? 501 2. Does Cole own copyright? 102 Author of original and fixed work. Cole made improvements to the code. Protected by 103 (requires lawful copying and lawful adaptation). 3. Infringement? 106 RIM made copies (106(1)), adapted (106(2)) and distributed (106(3)). But had a license? (RIM also (presumably) violated terms of the GPL v. 2 (no notices under para. 2). Does GPL v. 2 apply? Yes, through para. 5. By using or distributing the program or any work based on the program, the user/distributing entity accepts the license.) 4. Defense? First sale? No sale when Cole gave a copy of his code to Linux. We have transfer of permanent possession. But there are sales unlike restrictions in the GPL v. 2. 5. Remedies? Breach of contract only or remedies under the Copyright Act? If you go beyond the scope of the license, do you violate copyright law? How could you address in license? “If you breach the license, you are acting without a license” (e.g. para. 4 of GPL v. 2).

Cole Codewriter vs RAM (software company that licenses program to RIM): Rights and remedies under U.S. copyright law: 1. Cause of action? 501 2. Does Cole own copyright? 102 Author of original and fixed work. Cole made improvements to the code. Protected by 103 (requires lawful copying and lawful adaptation). 3. Infringement? 106 RAM made copies (106(1)) and distributed (106(3)). But had a license? Does GPL v. 2 apply? Yes, through para. 5. By using or distributing the program or any work based on the program, the user/distributing entity accepts the license. (But, RAM (presumably) violated the GPL v. 2 license (no notice under para 1.).) 4. Defense? First sale? No sale when Cole gave a copy of his code to Linux. We have transfer of permanent possession. But there are sales unlike restrictions in the GPL v. 2. 5. Remedies? Breach of contract only or remedies under the Copyright Act? If you go beyond the scope of the license, do you violate copyright law? How could you address in license? “If you breach the license, you are acting without a license” (e.g. para. 4 of GPL v. 2).

Cole Codewriter vs Rolf Ringer (co-worker who has the same type of phone): Rights and remedies under U.S. copyright law: 1. Cause of action? 501 2. Does Cole own copyright? 102 Author of original and fixed work. Cole made improvements to the code. Protected by 103 (requires lawful copying and lawful adaptation). 3. Infringement? 106 Rolf made copies (106(1)), but had a license under the GPL v. 2? Does GPL v. 2 apply? Yes, through para. 5. By using the program or any work based on the program, the user accepts the license. 4. Defense? Act of running program not restricted under the GPL v. 2 (para 0).

2.1 Is or should software be protected under patent law, given the wording of Section 101? “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

Process. Process of using, doing, making. Not actual implementation Process? Process of using, doing, making. Not actual implementation? Is software an implementation of a mathematical idea? Allowing a computer to function. Machine? Not by itself? Only on a medium. Software per se not patentable? Seems judges have made law to include software in 101 in spite of language of 101.

3. Manufacture? Software is a non tangible component of a manufacture (a computer), but is not a manufacture itself. 4. Composition of matter?

2.2 Could the legal mechanisms on which “copyleft” and the open source code movement are founded work with patent law as well as with copyright law? Prepare a list of legal considerations for discussion in class.

“Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”