Tools the Enable Copyright Infringement

[ScruffyDuck]

My Software enables the user to create original content but also modify third party content. It can also reverse engineer third party content.

The general position taken so far is to warn users not to modify or reverse engineer third party content without the permission of the original creator. The general view of the community I support is that it is OK to modify someone else's work if it is for personal use only. I am not sure that is a sound principle or not.

We work on the 'gun lobby' premise that it is not the gun that kills but the person who pulls the trigger.

My colleagues are becoming more concerned and recently we have had a case where someone tried to get a tool removed since he believed it responsible for copyright infringements of his work.

Some content developers (mostly commercial content) are now encrypting or otherwise obfuscating their work to stop people reverse engineering it

Thanks again for all your help

[AndyJ]

Hi scruffy,

Quite a bit to unpick here. As you are probably aware, software is treated as if it was a work of literature when it comes to copyright protection. In the modern age this is clearly nonsense, but it goes back to a time when all the instructions in a program were typed out manually so the process was a bit similiar to writing a book or a recipe. The original Copyright Designs and Patents Act has been extensively modified since 1988 to reflect the developments in software and the capabilities of hardware such as processors and, of course, the internet. The result is somewhat disjointed and interpretation of the law with respect to software is being amended by the courts all the time.

Anything which alters or adapts a piece of software without the permission of the copyright owner has the potential to be an infringement - see section 21(3)(ab) and 21(4) CDPA. If it appears that your software is specifically intended to make an infringing adaptation contrary to section 21(3)(ab), then you as the seller of the program may become liable for secondary infringement under section 24(1) which says:

24 Secondary infringement: providing means for making infringing copies.

(1) Copyright in a work is infringed by a person who, without the licence of the copyright owner—

(a) makes,

(b) imports into the United Kingdom,

(c) possesses in the course of a business, or

(d) sells or lets for hire, or offers or exposes for sale or hire,
an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies.

However this needs to be contrasted with section 50C which says:

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program to copy or adapt it, provided that the copying or adapting—

(a) is necessary for his lawful use; and

(b) is not prohibited under any term or condition of an agreement regulating the circumstances in which his use is lawful.

(2) It may, in particular, be necessary for the lawful use of a computer program to copy it or adapt it for the purpose of correcting errors in it.

It is worth noting in passing here that, in my experience, virtually all commercial software comes with a EULA which forbids the user from adapting it without permission, so sub-sub-section (b) above will apply in most cases.

Adding a warning to users of your software not to use it for such purposes is probably sensible, although it might also be seen as a subtle way of advertising that that is exactly what the software is designed to do. To use your gun analogy, it might be seen as similar to putting the words 'guns can kill' on the packaging of a firearm, prompting the buyer to say "yep, that's exactly what I want it to do". Only a court could decide, based on the evidence which was presented to it, whether your software was mainly intended for the purpose of infringing the copyright of other software.

You also mention copying software for private use. This is permitted under section 50A for the purpose creating software backups, as a prudent safeguard against an original CD or DVD becoming unreadable. It does not apply to software as a service (SaaS) or other cloud based implementations of software. But more importantly this exception does not authorise the making of adaptations of the original software other than for the limited purpose of correcting errors. The same part of the Act contains provisions permitting a program to be decompiled in certain circumstances (sections 50B and 50BA).

Then moving to the next level, where authors of their software seek to protect it with encryption or other technical measures, this brings into play two other parts of the law. The first is still within the Copyright Designs and Patents Act and can be found in sections 296 - 296ZG. The gist of this part is that "a person who, knowing or having reason to believe that it will be used to make infringing copies, manufactures for sale or hire, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire or has in his possession for commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device," is liable for infringement. In other words if your software can be used to defeat or remove any encryption etc applied by the original software maker, you could be liable provided that it could be shown that that was the 'sole intended purpose' of your software.

The second area of law is the Computer Misuse Act 1990 which forms part of the criminal law and is consequently much more serious. Although the CMA is largely aimed at the unauthorised access to a computer or network, there are a number of subsections (particularly section 3A(2 ) where a person is guilty of an offence if he supplies an article (which includes software) likely to be used to commit an offence under section 1, namely gaining unauthorised access to a computer system. Obviously this aimed at the makers of viruses, trojans and so on, rather than mainstream software, but you need to be aware that this law exists.

[ScruffyDuck]

Thanks very much Andy. You have clarified my ramblings on this. I am now clear that my software is essentially "programming Software" It creates code which is then used in flight simulators to display airports. The code used is rendered by a graphics engine so is for all intents software. I am sure you are aware that software can be interpreted or compiled. The code output from my software is compiled. The compiler is provided by the Flight Sim Developer.

The process is quite straight forward for a new project:

Design > Source code (XML) > compiler > Binary code > 'Encryption'

Encryption is a last stage which has recently appeared. The goal is to stop decompiling(see below)

To Edit or modify the code is simple if the user has the source code. The program opens the source and away we go.

However in most cases source code is not shipped with the finished binary package. We now get into reverse engineering. This can only be done if the binary is not encrypted. I have no decryption code or capability in my software. I have for years asked the Flight Sim Developers to provide source for the stock airports they ship without success. They know all about the decompiler and in once instance use my software themselves. In effect using a stock or other airport code as a basis for modification save the user from recreating the whole thing from scratch.

Binary > decompiler > Source code > Edit/Modify > compiler > Binary code > 'Encryption'

The decompiler is the first place where we might be infringing copyright. The binary code format is proprietary and its not entirely clear who owns the copyright. We can't change it in any case. Actually the goal of the decompiler is purely to generate source code as accurately as possible. There are a number of decompilers including one integral to my program and one that it just calls but is created by someone else. Again the commercial developers of airports use my software and their own or other decompiler.

From the point that the source code is reconstituted and loaded the user can modify or edit the work of the original author. Pretty much all the time these modifications are done for the benefit of the person making the modification and the modified code remains on their computer. The usual reason for this is that the original author of the work got something wrong. We always recommend that it is better to contact the original author than make a modification even if it is for personal use.

Another and much smaller group will actively take the original work, modify it and pass it off as their own. Assuming that the original Binary code is copyrighted to the originator this is a clear infringement.

If my logic makes sense then as "Programming Software" my program can be used to by someone to infringe copyright but I should not attract secondary infringements (I hope that is the correct terminology)

[AndyJ]

Hi Jon,

Thanks for the detailed explanation. Just to be clear on my part: 'software' in the copyright context is synonymous with 'executable code'. It does not include arrays, data tables (which would be classed as databases) or data/object files such .wav, .mpeg or jpeg etc. A compiler/decompiler is definitely software, although the status of things like APIs etc is less clear. The US Supreme Court held in the Google v Oracle case that an API was software but in Google's case the way that they implemented the Java API did not infringe Oracle's copyright. Most people see this outcome as saying that the copyright in an API (or any other interoperability protocol) is very weak.

From your explanation, I don't think your software puts you at any real risk of being accused of aiding or encouraging copyright infringement.

[ScruffyDuck]

Thanks Andy for you patience in reading my long winded explanations!

The Binary Code is definitely executed by the graphics engine as a set of instructions as to what to draw, display etc. It does not have an extension such as .exe or .dll (libraries) and can't be executed outside the simulator code code.

It raises another question though! Does a script qualify as software. It provides a series of instructions to the OS or some other environment which are executed


Jon

[AndyJ]

Yes, script would count as software for copyright purposes, as does HTML, XML etc.

[ScruffyDuck]

Many thanks. This keeps raising more questions in my mind.

If a person takes some software code created by someone else, modifies it and distributes the modified code as their own. I take that to a copyright infringement?

No if instead of modifying a piece of code they take that code or a part of it and add it to their software. Then distribute it as their own - is that copyright infringement? or is it plagiarism? You mentioned elsewhere that software is/was treated as written word for copyright purposes

Thanks again

Jon

[AndyJ]

Hi Jon,

Taking someone else's code and incorporating it into your own code could be infringement by copying provided that the amount copied was 'substantial' and was itself 'original'. Those two words are in inverted commas because they have a special meaning within this context. Substantial means that the extract forms an important or essential part of the source work and is not trivial. And original means that the extract originated from the mind of the previous programmer and was not itself copied from an even earlier piece of software.

In other words if the part you wish to use is taken from a library of sub-routines commonly used by many other programs, it would not be original. Whether or not the extract forms a substantial part of the source work is generally a matter of quality rather than quantity. This is more relavent in a literary work than a piece of software code, since, arguably, every single piece of code is there to perform a function and its absence would result in the program not working properly. Comments within the code would probably be classed as insubstantial as they are not necessary for the code to execute properly.

It might be worth referring you to an actual court case where some of these issues were discussed. About 12 years ago there was a case known as SAS Institute Inc v World Programming Ltd. The proceedings were protracted and some of the issues had to be referred to the Court of Justice of the European Union because the EU had issued a Directive about software copyright which set out the governing law on the subject. The link above takes you to Mr Justice Arnold's* 2013 decision in the case and provides a very detailed explanation of the court's finding. You may need to make a cup of coffee and set aisde an hour to read through it! However if you do manage to get through it, it should provide some insight to how the courts address this particular issue. SAS's claim included a claim that World Programming had copied parts of the manual which supported the SAS software. Obviously that aspect is not relevant to the claim about the infringement of the software itself, so you can skip over those parts of the judgment which deal with the manual.

* Today he is Lord Justice Arnold and sits in the Court of Appeal.

[ScruffyDuck]

Thank Andy - I will certainly read the judgement with interest. I am very familiar with SAS having created client solutions with it for many years