Stating the Epiphenomenal

Objective-C Categories and Derivative Works in Software

2010-02-11T07:24:00.000-08:00

This post examines the concept of derivative works in software, as it is understood in the open-source and free software communities, through the lens of the Objective-C programming language, and in particular Objective-C "categories." In short, I'm asking whether Objective-C's categories changes the derivative works analysis for software, given the settled interpretation that's arisen from the open-source community.

What is a derivative work in software? Nobody really knows, because there are only a handful of cases (if that) on the issue. Yet, lawyers advise clients every day on the risks of using open-source software, such as that licensed under the GNU General Public License. This is because, over the course of the past two decades, the open-source community and the free software community have gone to great lengths to build up what is now a well-accepted set of concepts, principles, rules of thumb, and guidelines. Because these concepts and principles resonate somewhat with traditional copyright concepts and principles, they have been accepted by many IP lawyers, businesses, and developers. But are they legally sound?

As a former Unix programmer, a copyright lawyer, and someone who often counsels clients in open-source licensing issues and copyleft "contamination," I've been puzzled for some time by what I call the "bit-centric" view toward derivative works in software put forth by organizations like the Free Software Foundation (FSF). By bit-centric I mean that the focus often seems to be on whether the bits of a library or a module are combined with an application or another library, not whether the application is conceptually based on the library.

I have been to many a FSF presentation in which the FSF lawyers state with great confidence that compiling or linking a math library with a calendar application that uses that library creates a derivative work, simply because all the bits of the two works end up in the same file on the filesystem. But why? Why is that the proper focus?

As any copyright lawyer will tell you, according to the Copyright Act, a "derivative work" is:

based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.

In light of this definition, one could argue, with a straight face, that a calendar application is not a derivative work of a math library. It is not based on the math library in the traditional sense; it is not a sequel or the same work of authorship in a different medium. It is not an abridged version, or a translation. In fact, it hardly seems to be a recasting, a transformation, or an adaptation of the math library at all, conceptually. It is simply another work of authorship that ends up getting combined with the bits of the math library to create a single application. Putting aside the likely sharing of headers, the calendar application doesn't even use any source code from the math library.

We open-source lawyers have all come to accept this bit-centric view of the derivative works in software question. But there is little foundation for it. (An examination of the relevant copyright precedent is beyond the scope of this blog post. I may return for a discussion of cases like Microstar v. Formgen and Galoob v. Nintendo in a later post.)

Now I come to the impetus for this post.

Over the weekend I was reading an Objective-C book in my ongoing quest to write a useful iPhone/iPad app and, when I was reviewing the section on Objective-C categories, I was reminded again of the general weirdness of the bit-centric view in open source jurisprudence. In Objective-C, categories offer the author of an application the ability to modify classes written and provided by someone else by adding methods that were not in the original class. And one can do this without having the source code to the original class. You just declare the new classes in your own source code. This, to me, seems like the quintessential derivative work: you're basing a modified version of the original class on the original class, thereby creating a transformed or adapted version of the class. But, under the bit-centric view, so long as you kept the bits sufficiently separate, this would not pose what some call a reciprocity problem and what Heather Meeker calls a heredity problem.

Is that the right result? It may actually be, from a law and economics perspective, or simply from a business standpoint. But am I the only one who thinks that the bit-centric view is unfounded in the law?

Science and Art in the Constitution

2010-02-10T17:52:00.000-08:00

I'm rereading Professor Goldstein's fascinating book Copyright's Highway: From Gutenberg to the Celestial Jukebox. In the chapter on the history behind the passage of the earliest laws protecting copyright, there is an interesting tidbit regarding the definition of certain key words in the Copyright and Patent Clause (Article I, Section 8), which says, "The Congress shall have Power . . . to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This is obviously the clause that gives Congress the right to pass the Copyright Act and the Patent Act. It turns out that, at the time, "Science" was the subject matter of copyright and "useful Arts" was covered by patents. I guess everything was all topsy-turvy back then, what with Federalists being in favor of a strong federal government and Democrats being frothy-mouthed states-rights literalists.

The original Copyright Act (1790) gave a fourteen-year copyright not only to books but also to maps and charts. We have certainly come a long way since then.

Putting This Blog on Pause, for Now

2009-10-27T11:29:00.000-07:00

Because I'm so busy with other projects, not least of which is the production of my first documentary film, I've put this blog on pause until further notice. I'm still following developments in Google Book Search, to the extent there are any. And I do intend to analyze the settlement agreement on this blog at some point. I've just got too many balls in the air at this point.

Google Books Settlement Delayed

2009-09-29T12:52:00.000-07:00

This is last week's news so you probably already know that the Google Books settlement hearing scheduled for October 7th has been delayed by Judge Chin in response to a motion to delay filed by the Authors Guild and the Association of American Publishers (the plaintiffs). The motion was not opposed by Google.

Judge Chin felt that, although the settlement would offer many benefits to society, enough well-reasoned objections to the terms of the agreements had been raised by a broad range of interested parties, including the DOJ, various states, other countries, nonprofits, and authors to justify the delay. Apparently, the parties agree. The court has received over 400 filings taking issue with some part of the agreement, which is not surprising given its broad sweep. Note too that the agreement is being challenged in French court (in a suit claiming that it violates French copyright law).

I intend to continue blogging about the agreement since, regardless of any delays, there is plenty to learn from the terms of the agreement and its reflection of the state of copyright law and book publishing in this country. However, October threatens to be one of the busiest months of my life so don't expect a lot of posts on this topic for the next month.

The Google Book Settlement: Introduction and Some Background

2009-09-20T21:46:00.000-07:00

For those who don't know, Google Books is a Google website / service in which you can search the full text of roughly seven million books. Google started the (then secret) project in 2002, with the intent to spend billions of dollars scanning books from various libraries, to eventually create a digital Library of Alexandria, where most of the books in existence could be searched. It is already becoming a great resource, despite its technological and legal challenges. If you haven't tried it, you should take a minute and run a few searches.

I have been meaning to read the book Google Books Settlement and blog about it ever since it was announced almost one year ago. However, I'm glad I waited because there is more to sink my teeth into now. There is a fairness hearing approaching (October 7, 2009) and there have been new developments since last year, as well as extensive commentary both pro and con. For example, the DOJ has recently announced possible revisions to the settlement by the parties.

Google had been doing this with the cooperation of several libraries—the New York Public Library, Harvard, and Stanford to name a few—but without the permission of the Authors Guild, publishers, or any authors. Unsurprisingly, in September 2005, the Authors Guild filed a class action lawsuit against Google asserting "massive copyright infringement" on Google's part. The Association of American Publishers filed a similar lawsuit in October of that year. Individual authors and publishers joined the suit as well. Google initially argued that its activities (scanning, indexing, making available on the Web) were fair uses under copyright law. However, although Google benefits from the defense of fair use in many of its online offerings, in this case the viability of its fair use argument was far less certain.

Last October, Google reached a settlement with the plaintiffs in which Google agreed to pay $125 million and to create an entirely new system for paying authors and publishers revenues on book sales, advertising revenue and other sources of income flowing from Google's operation of Google Books. Since then, the United States Department of Justice has opened an antitrust investigation of the matter, a coalition of nonprofit groups, library associations, and others has formed the Open Book Alliance in opposition to Google Books, and European publishers and authors have weighed in. The settlement currently awaits official court approval; the fairness hearing is currently scheduled for October 7, 2009.

According to Jason Schultz, the Google Book Settlement is the biggest copyright licensing deal in history. It matters, and has garnered my interest, because of its broad-reaching implications for the future of book publishing, copyright law, and our culture at large. A comprehensive book search is a technology that has been a long time coming and it has the potential to benefit all involved: authors, publishers, and readers. This settlement could set a precedent (in the non-legal sense of that word) for years to come. As a copyright law wonk and an avid reader, I find it fascinating. And I look forward to exploring the settlement and the evolution of Google Books with you here on this blog.

Going from INTJ to INFP on the Myers-Briggs Personality Test

2009-09-20T09:12:00.000-07:00

I recently found out that I am no longer a cold, calculating, judgemental jerk. This is news to me, good news. Instead of an INTJ on the Myers-Briggs personality spectrum, I am now an INFP. Hallelujah! I never identified with the Thinking, Judging aspects of that designation. I am much happier to know that I am a Feeling, Perceiving person. This resonates with me and shows that something good did come out of the soul wrenching experiences I had in law school and at the big law firm.

In my transition from geeky software engineer to intellectual property attorney who writes creatively, takes French classes and acting classes, and has started playing guitar again, one thing I've been fascinated by has been what I see as a shift from a mildly autistic and myopic personality to one that is more emotionally sensitive and well-rounded. I have always been a sensitive person on the inside but never let it show. Feeling trapped by my persona was always frustrating for me. But the important thing is that last week I encountered an illuminating revelation that helps me put this transformation into a framework. I retook the Myers-Briggs personality test and discovered that, in the past ten years, since I last took the evaluation, I have gone from an INTJ to an INFP. This is huge.

Some think that your Myers-Briggs designation is like a fingerprint; it doesn't change over the course of your life. I'm not sure about this; I strongly believe that one can develop one's personality, that one can, to paraphrase a Talking Heads song, cause one's personality to approach those of one's ideals. But those who believe this fingerprint theory explain changes in the test outcome as the revelation of one's true personality type, a sort of unearthing of one's true nature through personal growth work, challenging experiences, and maturation. In other words, the old type may have been developed as a coping mechanism in childhood, or as a misguided attempt to mimic a childhood role model. So, for example, my early emphasis on the Thinking and Judging traits were a direct result of what was a fairly chaotic and arduous childhood. I escaped into my head and fenced off my heart to cope.

But now, as my emotional intelligence, so to speak, and my creativity have grown, my ability to do math and my interest in science has waned. This has led me to a theory about the correlation between one's aptitude for right brain thinking (math, science, etc.) and one's personality, one's outlook. Would we have as many scientists and mathematicians if there were less dysfunctional families and strained parent-children relationships? Perhaps, although I know plenty of engineers who had idyllic childhoods. And, anyway, that is a question for another post, if not an entire PhD thesis in psychology.

In reading the classic description of an INTJ, I kept thinking to myself, "This sounds exactly like the person I don't want to be. These are precisely the things I've been working so hard to change over the past seven or eight years, since law school forced me to face my demons head-on." I'm not generally a rigid perfectionist, focused single-mindedly on the most logical and rationally perfect solution to problems. I do not value efficiency and reason over all else, nor am I especially competitive. I would never berate a colleague in the middle of a 3am conference call. Rather, I'm more interested in people's stories, in the natural beauty of the world, in the rapture of an improvised piano jazz tune or the visceral emotion of a heart-wrenching stage play. I am a good listener and can empathize with the concerns and problems of others. I value a supportive and friendly environment where I work with people I trust and respect.

Of course, there are still elements of the INTJ type in me. As my friends can attest, I often have little patience for or understanding of certain social lubricants like small talk and I do expect people's behavior to "make sense" sometimes. I still enjoy the intellectual stimulation of a challenging problem or making a complex system more accessible. And I am fiercely independent. Obviously, the types cast penumbras in which one can be a mixture of different types. Although INFP resonates most loudly for me, there are echoes of other types within me.

What does all this mean for a practicing lawyer? As Michael F. Melcher points out in The Creative Lawyer, it can present unique challenges. Although the Judging/Perceiving split amongst lawyers reflects that of the general population, 81% of male lawyers and 66% of female lawyers are Thinking rather than Feeling. INFPs have a place in the law but need to be aware of the overwhelming presence of detached, logical, competitive types. In fact, INFPs have special skills when it comes to working as a lawyer. Being comfortable with spontaneity and uncertainty are crucial traits for a lawyer. And having the ability to focus deeply can be of great benefit. There is a place for the INFP personality in the law. I am in the process of finding it.

I'll have more to say in a later post about what it's like as an INFP. For now, it's enough to know that I'm a round peg so I can stop trying to fit into a square hole. And I don't really think that INTJs are cold, calculating jerks; they just act that way sometimes. As a former INTJ myself, I can empathize with that.

Where Is My Mind?

2009-09-17T11:48:00.000-07:00

I know you've all been awaiting my thought-provoking and sublime posts here on my shiny new blog. And I'm sorry to disappoint by not posting anything. I've actually got about a dozen draft posts in various stages. But my life has just been too busy lately to polish my drafts for posting. My ambition has exceeded the reality of my personal bandwidth. I'm stilling planning to post here, and on my other blogs. I intend to squeeze a few minutes of writing time here and there between work, iPhone app development, yoga, and my classes. But for now you'll just have to wait.

Welcome to My Blog

2009-08-15T12:44:00.001-07:00

The title of this blog was inspired by a passage in law professor Joseph Vining's weird and wonderful book "From Newton's Sleep" in which he offers a series of "amplifications" or what I will call riffs on the law and how it "reaches deeply into the way we know ourselves and other persons." As a reminder to the reader, an epiphenomenon is, among other things, a "mental state regarded as a byproduct of brain activity."

The passage is IV.8, in which Vining has an epiphenomenalist say, "Mind is nothing but the glitter on the water." Then, criticizing this as "an image of smallness and insignificance," he says that, "[i]f the word [glitter] could speak, it would speak of jewels, Christmas trees, the lights at parties, winking lights, smiling lights. In that one word is a radiance at war with sadness."

I want this blog to be a radiance at war with the sadness that so often arises in the mundane life of a creative lawyer confined by the strictures of a traditional legal job. I am seeking to create the glitter on the surface of my otherwise stifling workaday existence as a lawyer. This blog will be a chronicle of that journey. Think of it then as the epiphenomena of the mind of Lloyd.

I realize that may be excessively cryptic but it will have to do for the moment.