
Software vendor argues that it has copyright in output of its CAD software - macmac
http://www.maw-law.com/copyright/output-copyright-protected-software-program-protected-copyright/
======
zokier
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.

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

~~~
alok-g
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.

~~~
vertex-four
GCC does not have such a clause. What it does have is a clause allowing a
small library - the GCC Runtime Library - to be linked to and included in its
output, provided certain conditions are met. The library is separate from the
compiler input and not a result of it - it contains some core functions
involving things like exception handling, arithmetic on some architectures,
etc. It's held to be self-evident that compiler output that is a direct result
of compiler input does not come under the license of the compiler.

~~~
bonzini
GCC does not, but Autoconf and Bison for example do. GCC's templates are a
handful of instructions long (at most) and are subject to plenty of
transformations before they end up in assembly code; Autoconf and Bison
literally copy hundreds of lines of code verbatim. You need a license that is
separate from the GPL to use that output in a non-GPL-compatible derivative
work.

~~~
vertex-four
That makes sense - if autoconf source is closer to a set of instructions
"please include library functions A, E and G in this order" than C source,
it's obvious that each function is under copyright and so the output would
come under the terms of the license covering those functions.

------
macmac
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...](http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010345)

~~~
icebraining
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.

~~~
macmac
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.

~~~
icebraining
That still doesn't distinguish it from PS, though; just look at Content-Aware
Fill.

~~~
macmac
As I mentioned, weak argument.

------
GnarfGnarf
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.

~~~
macmac
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
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._

~~~
PostOnce
Is it normal to contact vendors of software you use to find out if your
contractors are also legally using it?

------
rdtsc
> 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
...continue

~~~
rdtsc
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.

~~~
myrandomcomment
I have done a few HW and a few SW startups. For the HW I would eventually help
us move into all of Asia. For the SW I would help move into Asia, minus China.

~~~
rdtsc
At our company we did eventually end up with a hardware dongle. But it helped
that it was a HW/SW solution anyway. We just added a few operations that
needed to go through a hardware module. It was just enough hoops to jump
through to hopefully dissuade the casual "pirate".

It was an interesting problem anyway. A lot of obvious solutions didn't seem
to work, like say just checking a flag in an "if ... else" branch because that
can be disassembled and bypassed with a patch. Some functional operations that
are critical to the product had to actually go through the hardware... Now
looking back we probably over-engineered the heck out of it.

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

Where does it end?

~~~
ris
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...

~~~
aidos
Though, adobe themselves provide the documentation to unlock the format

[https://www.adobe.com/devnet-
apps/photoshop/fileformatashtml...](https://www.adobe.com/devnet-
apps/photoshop/fileformatashtml/)

~~~
thenewwazoo
To which I humbly submit one of my favorite pieces of writing about the PSD
file format.

From [https://bitbucket.org/WAHa_06x36/old-
xee/src/fe1cec107972603...](https://bitbucket.org/WAHa_06x36/old-
xee/src/fe1cec107972603523e67e7be29a83e493f5cac2/XeePhotoshopLoader.m?at=default&fileviewer=file-
view-default#XeePhotoshopLoader.m-108)

    
    
        // At this point, I'd like to take a moment to speak to you about the Adobe PSD format.
        // PSD is not a good format. PSD is not even a bad format. Calling it such would be an
        // insult to other bad formats, such as PCX or JPEG. No, PSD is an abysmal format. Having
        // worked on this code for several weeks now, my hate for PSD has grown to a raging fire
        // that burns with the fierce passion of a million suns.
        // If there are two different ways of doing something, PSD will do both, in different
        // places. It will then make up three more ways no sane human would think of, and do those
        // too. PSD makes inconsistency an art form. Why, for instance, did it suddenly decide
        // that *these* particular chunks should be aligned to four bytes, and that this alignement
        // should *not* be included in the size? Other chunks in other places are either unaligned,
        // or aligned with the alignment included in the size. Here, though, it is not included.
        // Either one of these three behaviours would be fine. A sane format would pick one. PSD,
        // of course, uses all three, and more.
        // Trying to get data out of a PSD file is like trying to find something in the attic of
        // your eccentric old uncle who died in a freak freshwater shark attack on his 58th
        // birthday. That last detail may not be important for the purposes of the simile, but
        // at this point I am spending a lot of time imagining amusing fates for the people
        // responsible for this Rube Goldberg of a file format.
        // Earlier, I tried to get a hold of the latest specs for the PSD file format. To do this,
        // I had to apply to them for permission to apply to them to have them consider sending
        // me this sacred tome. This would have involved faxing them a copy of some document or
        // other, probably signed in blood. I can only imagine that they make this process so
        // difficult because they are intensely ashamed of having created this abomination. I
        // was naturally not gullible enough to go through with this procedure, but if I had done
        // so, I would have printed out every single page of the spec, and set them all on fire.
        // Were it within my power, I would gather every single copy of those specs, and launch
        // them on a spaceship directly into the sun.
        //
        // PSD is not my favourite file format.

~~~
Stratoscope
Here's a mobile-friendly copy of that:

/*

At this point, I'd like to take a moment to speak to you about the Adobe PSD
format. PSD is not a good format. PSD is not even a bad format. Calling it
such would be an insult to other bad formats, such as PCX or JPEG. No, PSD is
an abysmal format. Having worked on this code for several weeks now, my hate
for PSD has grown to a raging fire that burns with the fierce passion of a
million suns.

If there are two different ways of doing something, PSD will do both, in
different places. It will then make up three more ways no sane human would
think of, and do those too. PSD makes inconsistency an art form. Why, for
instance, did it suddenly decide that _these_ particular chunks should be
aligned to four bytes, and that this alignement should _not_ be included in
the size? Other chunks in other places are either unaligned, or aligned with
the alignment included in the size. Here, though, it is not included. Either
one of these three behaviours would be fine. A sane format would pick one.
PSD, of course, uses all three, and more.

Trying to get data out of a PSD file is like trying to find something in the
attic of your eccentric old uncle who died in a freak freshwater shark attack
on his 58th birthday. That last detail may not be important for the purposes
of the simile, but at this point I am spending a lot of time imagining amusing
fates for the people responsible for this Rube Goldberg of a file format.

Earlier, I tried to get a hold of the latest specs for the PSD file format. To
do this, I had to apply to them for permission to apply to them to have them
consider sending me this sacred tome. This would have involved faxing them a
copy of some document or other, probably signed in blood. I can only imagine
that they make this process so difficult because they are intensely ashamed of
having created this abomination. I was naturally not gullible enough to go
through with this procedure, but if I had done so, I would have printed out
every single page of the spec, and set them all on fire. Were it within my
power, I would gather every single copy of those specs, and launch them on a
spaceship directly into the sun.

PSD is not my favourite file format.

*/

------
charonn0
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.

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

~~~
shmerl
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.

~~~
Arcaire
I believe the parent meant that it's not a bad idea to reevaluate the usage of
any software that is business-critical and may have similar repercussions
should your license to use it expire.

~~~
macmac
That is exactly what parent meant.

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

~~~
arca_vorago
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](http://www.gnu.org/licenses/gpl-faq.en.html#GPLOutput)

~~~
E6300
Actually, the output of Bison is GPL'd on the same grounds as presented in
this case, that a significant portion of it includes code from Bison itself.
You can't link and distribute a Bison-generated parser with a non-GPL parser
generator (for other kinds of programs, the license contains an exception that
allows linking).

~~~
wtetzner
That was the case, but now there's an exception:
[http://www.gnu.org/software/bison/manual/html_node/Condition...](http://www.gnu.org/software/bison/manual/html_node/Conditions.html)

~~~
E6300
Yeah... I mentioned that exception in the parenthetical statement.

------
alok-g
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.

~~~
macmac
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).

------
karmicthreat
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.

~~~
icebraining
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.

~~~
macmac
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.

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

~~~
guitarbill
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.

------
joelthelion
Software vendor loses all of its customers.

~~~
bonzini
Parent didn't read the article?

~~~
jwilk
From the Hacker News Guidelines[0]:

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

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

------
braum
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.

~~~
Rzah
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.

~~~
braum
great analogy, thanks!

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

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

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

------
jwilk
From the Hacker News Guidelines[0]:

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

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

------
Animats
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.

~~~
icebraining
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.

------
dba7dba
So if I wrote a novel using Microsoft Word, Microsoft has the copyright to the
novel?

------
blhack
Software vendor is wrong.

