Software vendor argues that it has copyright in output of its CAD software

http://www.maw-law.com/copyright/output-copyright-protected-software-program-protected-copyright/

by macmac • 9 years ago

149 110 9 years ago

macmac17• 9 years ago

This case is with the Ninth Circuit on appeal. If you are interested in how courts conduct oral arguments in cases like this, there is a video recording available at http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000...

icebraining5• 9 years ago

I like how they really grill the lawyer of the plaintiff. Frankly, her explanations - especially when trying to come up with a test to distinguish their software from Photoshop - are pitiful.

macmac17• 9 years ago

It gets slightly better later when she explains how some of the elements of the output is controlled by the CAD software, but it is still a very weak argument.

a_humean• 9 years ago

The defendant seems pretty scummy and deserving to be held accountable, but the plaintiff's strategy seems dead in the water. Judges are giving both a very good grilling.

icebraining5• 9 years ago

Judges are giving both a very good grilling.

On that note, the Ninth District YouTube account is pretty interesting if you're into legal arguments. I particularly enjoy the hearings with Judge Kozinski.

arca_vorago2• 9 years ago

Once again the dangers of proprietary software in the businesplace raise their heads. I wish people with the ability would work on contributing more to the open source cad projects, because at one point suffering under autodesks draconionan and expensive licensing I tried to get a business to start switching but the open source stuff simply isn't up to snuff in most cases.

gaius• 9 years ago

How do you mean danger?? The body of the article is considerably less hysterical than the title.

macmac17• 9 years ago

What is hysterical about the title i.e. "When is the output of a copyright-protected software program itself protected by copyright?" ?. Seems very appropriated and balanced.

arca_vorago2• 9 years ago

I mean you won't find GNU projects doing stuff like this, but only in proprietary land do you find companies who think it's ok to copyright output. (which is a symptom of the bigger issue of culture around non-free software in general)

http://www.gnu.org/licenses/gpl-faq.en.html#GPLOutput

alkonaut• 9 years ago

There are thousands of CAD packages out there and most are proprietary because they do proprietary stuff for a niche market.

All the open source CAD packages are general purpose cad (i.e. Basically "drawing") software.

I make a package with 100 man years of dev time that might have a total global market of 2000 users. It's not exactly something that would reach critical mass on github.

Even if we based our software on one of the open source packages we'd still be a huge chunk of proprietary software written as an extension.

CAD isn't just drawing lines.

dade_• 9 years ago

I use FreeCAD for my 3D printing designs. It works great on Windows and Ubuntu (not so great on Mac), but for designing enclosures for electronics projects and printing them, it has met my needs. I think it takes longer to learn than AutoCAD's maker apps, but I know i will always have access to my designs. It will be a shame if all of this open hardware for 3D printing, and CNC routers doesn't result in a feature rich CAD application. From what I can see, AutoDesk saw the risk and has inserted themselves with "fun and easy" web based and cloud apps.

karmicthreat• 9 years ago

Defendant in this case probably knows and purposely uses Chinese contractors to get around licensing expensive software. So not exactly someone to cheer for. But plaintiff also wants to set a pretty bad precedent.

icebraining5• 9 years ago

What's pathetic is that they actually did download the software, which will probably come back to bite them. Sounds like we can hope this is a case in which everybody loses :)

Well, except the lawyers, of course.

macmac17• 9 years ago

They appear to argue that the download was some sort of trial copy or at least that they thought it was. It appears undisputed that they never used the software.

kmichaels3• 9 years ago

I think they likely just look at the sub-contracting costs and see that the Chinese contractors are massively cheaper then don't ask too many questions.

It's pretty much business as usual to pirate CAD software in China so they probably knew what was happening though.

zokier3• 9 years ago

This is actually surprisingly interesting case. While I think most would agree that when software does purely "algorithmic processing" then the output would not be considered derivative work. But increasingly software suites include various templates and content libraries. When the output is then a composition of those templates and library content then I'd agree that there is an argument to be made that such output could be considered derivative work.

macmac17• 9 years ago

I agree that the question is interesting and the result in other cases (e.g. code generation tools) might surprise many, but this doesn't appear to be a obvious example of output being a derivative work.

maxerickson• 9 years ago

The other side of it is that refusing to offer reasonable licenses to users of the software will tend to cause them to stop being users.

brianwawok• 9 years ago

Only in a market with competition. Especially healthy competition. I don't know CAD market that well, but for example my dad did it for 20 years and only liked 1 program. Doubt he could have switched easily with so much work in one format.

segmondy• 9 years ago

By that line of reasoning, your compile's output is derivative work of the creative effort of the compiler writers.

aseipp• 9 years ago

It has little to do with "creative output" and more to do with the license surrounding those components you use, and the components your "final product" uses. You seem to be insinuating it's ridiculous to apply this sort of "derivative work, by-way-of-library" logic to compilers, but it absolutely happens all the time. It happens especially with compiler-style things, in fact.

Just as the most obvious example, several large GPL libraries, parts of GCC such as libgcc, and more, run under the GPL linking exception -- this exception to GPL-licensed libraries means that programs using those libraries directly are not subject to the rules of the GPL, while normally they would be (under the "derivative work" logic). For example, every C program compiled by GCC links against libgcc, which is GPL. But you are not implicitly put under the terms of the GPL, just because you used GCC to compile something, and it happened to use libgcc. libgcc explicitly exempts this use case.

So, why does this exception exist, and why is it explicitly stated? Precisely because, just like those "template content libraries" from some random vendor, GCC links your code against components and libraries that have clear licensing terms. The licensing terms of those libraries absolutely impacts the licensing terms of the final, produced work, unless stated otherwise. (Have you ever noticed how even commercial software is required to maintain a copy of the BSD license? Well, it's legally required to, if you use BSD software. It says so, right on the tin.) This isn't some kind of legal 12-dimensional chess, it's a fairly obvious bump you encounter quite quickly. This is obviously especially important for compiler-style things, since in reality, their whole purpose is to generate "derivative works" of all sorts. Guile also has a GPL linking exception for some similar reasons, IIRC.

In all honesty, to me, the weird thing about this case isn't that they're making claims about "derivative works" or whatever, with regards to libraries. It's weird to me that they even need to make the argument at all -- most of the time, with a lot of software, the licensing situation surrounding components like this (and how you can use them) is pretty clear. It seems odd it wouldn't be strictly clear already, in a way.

bluejekyll• 9 years ago

Not exactly. I think it would be closer to a languages stdlib being included with a compiler and the use of that stdlib plus the compiler (javac+jdk, for example) would be derivative work.

flamedoge2• 9 years ago

And processor's output is derivative work of creative work of processor designers

alok-g2• 9 years ago

Isn't that true? A compiler's output does include many portions which include creative effort of the compiler writers. Licenses for compilers thereby explicitly include a clause on giving up that ownership over the output of the compiler. In other words, the line of reasoning has always been true; perhaps you were unaware like most people who never actually read the license text.

WalterBright3• 9 years ago

All your base belong to us!

kmichaels3• 9 years ago

Right, but usually the licensing around libraries/templates is quite clear? At least it should be.

Here's specifically what they're claiming copyright over:

"DDC’s counsel answered that DDC is focused on expressive content that is not in the actual design of the component, such as the font or the colors used, the shape of a comment box, or the placement of certain components around the design which appear in the design file, but which are not the design itself."

Which seems very weak. Clearly they really would want to go after the Chinese sub-contractor but know this is too hard.

Only way round this I can see is new legislation that means you can be held responsible for copyright violations of sub-contractor if you can reasonably expected to know they are violating copyright.

Going after copyright on the output files is daft and dangerous.

macmac17• 9 years ago

Agree that it should be clear. Reality unfortunately in my experience is a lot less so.

zokier3• 9 years ago

Right, but usually the licensing around libraries/templates is quite clear?

I think it would have been clear if UE had used legitimate licensed version of the software. In that case I'd imagine they would have gotten license to the auxiliary content too. But if they were using unlicensed pirate version of the software then they would not have had proper license to the content and so the output files would have been infringing too.

1wd• 9 years ago

It seems plausible to me that the author of _some_ software would have copyright of that software's output. For example I assume the authors of a 100% non-interactive, real-time rendered audio-visual art piece (c.f. demo scene) would own the copyright of the output (e.g. a movie file), even if someone else runs the software.

Another example would be an interactive game. Here the player / user contributes a certain creative input, but still some game developers retain the right to stream gameplay (=distribute the output of the software which uses certain copyrighted assets?).

I guess a game like Minecraft might "cross the line" to where some of the output (any elaborately voxel constructions) might plausibly be owned by the player.

zubat• 9 years ago

The boundary for transformation is established in several areas of media.

Recorded samples from the line out of a synthesizer are owned by the author of the recording, even if they're factory presets. Likewise, bitmap conversions of a vector font are the property of the game developers who made them.

In contrast, sample data copied from the ROM of a synthesizer is still under copyright, and original vector font files are owned by their authors.

rdtsc5• 9 years ago

That is an interesting point.

Moreover, I am wondering, just for cases like these, if a company could make their output copy-writable on purpose. They could insert code or content in the output just to be able to claim copyright on the output not because they need to.

Think of a nightmare scenario if say Java compiled code would not include just bytecode but bits of JVM meshed together with the bytecode. Then Oracle could come after everyone compiling and selling java programs.

bonzini4• 9 years ago

Then Oracle could come after everyone compiling and selling java programs.

... without a license from Oracle to redistribute those bits. The point in the lawsuit of this post is that the software was pirated.

charonn0• 9 years ago

This seems like a bad idea for the vendor. Now all of their customers will have to evaluate the legal risks of merely using the software.

macmac17• 9 years ago

That's not a bad idea for any software that is critical to one's business.

shmerl• 9 years ago

What, it's not bad to scare off their own customers? After such claims, they'll ditch this vendor, and will go looking for more sane competitor who isn't a copyright freak.

mortdeus• 9 years ago

That's nonesense. This is like somebody claiming they own copyright on your book or code because you used their text editor.

danjoc• 9 years ago

Ah, so you're familiar with iBooks then ;)

http://www.zdnet.com/article/apples-mind-bogglingly-greedy-a...

guitarbill• 9 years ago

It's not quite that. If the output of the program was a standard text file, then no, because nothing of the program was copied. If for example the output of the program included certain fonts or graphics (e.g. PDF), those are still copyrighted. To use those fonts, you'd need a licence, in this case the same licence you need for the program.

alok-g2• 9 years ago

Many EULAs explicitly include a clause stating that the vendor does not hold any rights over the output of the program. (A common example is when you use a compiler to create a binary. Read what the license says.)

IANAL.

macmac17• 9 years ago

And many do not. I have negotiated software licenses for 15+ years and had to fix this issues many times. Just as many software licenses explicitly only license object code, but the licensed product turns out to contain quite a bit of source code, which if not addressed the licensee is not allowed to use (copy).

bonzini4• 9 years ago

If you pirate the software, you certainly aren't agreeing to any EULA. It's actually an interesting case, more than you could think as a first impression.

joelthelion• 9 years ago

Software vendor loses all of its customers.

ssalazar• 9 years ago

For niche CAD tools theres usually only one or two games in town and a lot of stickiness with old files, production workflows, user skill with the tool, etc. Switching to a different solution may not be an option. Unless they start suing all of their customers, they're probably fine.

bonzini4• 9 years ago

Parent didn't read the article?

jwilk2• 9 years ago

From the Hacker News Guidelines[0]:

Please don't insinuate that someone hasn't read an article.

[0] https://news.ycombinator.com/newsguidelines.html

siculars• 9 years ago

In other news... Bic pen, makers of ubiquitous writing implements, claims copyright over all writings made with said implements.

Where does it end?

ris2• 9 years ago

If we're asking "should a user be able to continue using files created with a program beyond the point that they are paying from that program?" we're not that far from the practical effects of such a decision already.

I'd wager that a good 90% of the world's graphical/artistic material is locked up in Adobe-proprietary formats for which the only practical editing software has moved to a cloud licensing model. Dispute with Adobe? Say goodbye to all your company's assets...

ikeboy2• 9 years ago

Well they can still be edited in desktop versions, which have licenses that have been fully paid for and can't be revoked.

aidos2• 9 years ago

Though, adobe themselves provide the documentation to unlock the format

https://www.adobe.com/devnet-apps/photoshop/fileformatashtml...

psyc• 9 years ago

Adobe can claim one doesn't have a license to use PhotoShop. There is no reason for them to additionally claim they own the copyright to one's .PSDs.

achr2• 9 years ago

That is a really poor comparison. Imagine you built a piece of software that had tens of thousands of man hours of industry specifications, templates, calculations, symbol libraries, and regulatory compliance built in. Now imagine an american company was 'offshoring' their piracy to Chinese subcontractors who used that software illegally to produce intelligent CAD files (i.e. not just a CAD drawing, but bills of materials, specs, and calculation tables) that literally could not be produced to the same standards without that software. And then sold those files in the US market for major profit, without ever having payed for any licenses of your software or tools.

I am all for open standards, and I don't really care about individual piracy. But a company should be held responsible for the ethical production of their products no matter if they subcontract the work or not.

ComodoHacker• 9 years ago

Where does it end?

It rather only starts here. Just wait until AI tech evolve enough for AI-produced creative work to be minimally valuable.

Animats• 9 years ago

The company is accused of pirating the software. If they had it lawfully, they wouldn't be in this fix. The question here is whether the program outputs from a pirated program are free of copyright restrictions.

icebraining5• 9 years ago

No, the fact that they "pirated" the software is a separate claim, since the output files were not produced by their copy of the software. They would be in this fix even if they had never "pirated" it.

blhack• 9 years ago

Software vendor is wrong.

GnarfGnarf• 9 years ago

What I take from the description is that the defendant, Unigate Enterprise (UE), used the software (SDS/2) to produce drawings for its Chinese contractors. The drawings are in a proprietary file format that can only be viewed by SDS/2 (written by Design Data Corporation (DDC)).

Chinese contractors use illegal copies of SDS/2 to view the drawings. So yes, the Chinese have broken the law. It's Unigate's problem that they chose software that produces files that can't be openly shared.

In claiming that the output is copyrighted, DDC seems to be resorting to a last-ditch (and groundless) effort to sue their American client, UE, because they have little prospect of getting anything out of the Chinese.

Bottom line: [1] Somebody broke the law. [2] It has little to do with copyrighting a program's output.

macmac17• 9 years ago

Those are not the facts. UE didn't use SDS/2. They subcontracted work that requires the use of SDS/2 to a Chinese subcontractor who used an allegedly pirated copy of SDS/2 to do the work. It has to do with copyright in program output because that is what DDC is claiming. I would agree that the claim in this case is weak but it is before the 9th Circuit and their opinion is going to be very interesting either way.

conistonwater• 9 years ago

Doesn't this bit also matter?

Judge Callahan and Judge Hurwitz were both troubled by the fact that UE had advertised on its site that it used the SDS/2 software. UE’s counsel answered that UE was counting on contractors to use it, but admitted that UE had never asked DDC if it was indeed true that the contractors were legally using the software.

braum2• 9 years ago

Why not argue that because the external contractors in china are using an illegal copy, therefore there is no client that paid a license to use the software, and that DDC (software maker) should be able to assume the copyright of the output because they are the only viable and legal copyright holder of the software in use. AND therefore the only one with a valid license of the software and its output.

crooked-v• 9 years ago

A. DDC (software maker) should be able to assume the copyright of the output
B. they are the only viable and legal copyright holder of the software in use

B does not imply A. You're trying to invent something here that doesn't exist.

macmac17• 9 years ago

One of the judges actually start by disabusing DDC's counsel of the notion that one has anything to do with the other. You don't get to invent a new legal concept just because someone allegedly pirated your software.

Rzah• 9 years ago

If I steal a pen and write a poem with it I still hold copyright over the poem, how the poem was transcribed has no bearing on copyright.

braum2• 9 years ago

great analogy, thanks!

std_throwaway• 9 years ago

So, does that make them responsible for the things done with their software?

rdtsc5• 9 years ago

UE admitted that SDS/2 had been used to create files and drawings in five of its projects, but argued that they were made by contractors in China.

China piracy story time. I was talking to makers of a niche CAD type software package. It was niche enough that they simply knew all their customers pretty much by name. They went to a trade show to exhibit their software, and a group of Chinese engineers approached them, thanked them and told how much the love their software, it is the best really for what it does, etc, etc. So that was good, everyone was happy and smiling, except one thing - the company shown on their badges was not a client.

jameskegel• 9 years ago

...continue

rdtsc5• 9 years ago

Well they had a problem. Their software was being pirated. There was talk of a selling a hardware dongle with it. But I am not sure what came of it, since I lost contact with them.

Here is what I wonder. Even if they lowered the price just for China, would there be a point where they would choose to pay for it or it would never matter a pirated copy would always be preferred.

LeicaLatte• 9 years ago

Nintendo has a similar take on its software. It claims rights on the game footage uploaded to youtube by users.

njharman• 9 years ago

That makes more sense as they own the art assets that are being displayed in video.

jwilk2• 9 years ago

From the Hacker News Guidelines[0]:

please use the original title, unless it is misleading or linkbait

[0] https://news.ycombinator.com/newsguidelines.html

dba7dba• 9 years ago

So if I wrote a novel using Microsoft Word, Microsoft has the copyright to the novel?

Software vendor argues that it has copyright in output of its CAD software

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