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From Rob Weir <>
Subject Re: A systematic approach to IP review?
Date Thu, 29 Sep 2011 11:59:57 GMT
On Thu, Sep 29, 2011 at 1:53 AM, Dennis E. Hamilton
<> wrote:
> Let me recall the bidding a little here.  What I said was
> " It is unlikely that machine-generated files of any kind are copyrightable subject matter."
> You point out that computer-generated files might incorporate copyrightable subject matter.
 I hadn't considered a hybrid case where copyrightable subject matter would subsist in such
a work, and I have no idea how and to what extend the output qualifies as a work of authorship,
but it is certainly a case to be reckoned with.
> Then there is the issue of macro expansion, template parameter substitution, etc., and
the cases becomes blurrier and blurrier.  For example, if I wrote a program and then put
it through the C Language pre-processor, in how much of the expanded result does the copyright
declared on the original subsist?  (I am willing to concede, for purposes of argument, that
the second is a derivative work of the former, even though the derivation occurred dynamically.)
> I fancy this example because it is commonplace that the pre-processor incorporated files
that have their own copyright and license notices too.  Also, the original might include
macro calls, with
> parameters using macros defined in one or more of those incorporated files.

Under US law:  "Copyright protection subsists, in accordance with this
title, in original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device"

IANAL, but I believe Dennis is correct that a machine cannot be an
author, in terms of copyright.  But the author of that program might.
It comes down to who exactly put the work into a "fixed in any
tangible medium of expression".

When I used a n ordinary code editor, the machine acts as a tool that
I use to create an original work. It is a tool, like a paintbrush.  In
other cases, a tool can be used to transform a work.

If there is an original work in fixed form that I transform, then I
may have copyright interest in the transformed work. That is how
copyright law protects software binaries as well as source code.

As for the GNU Bison example, if I created the BNF, then I have
copyright interest in the generated code.  That does not mean that I
have exclusive ownership of all the generated code.  It might be a
mashup of original template code from the Bison authors, along with
code that is a transformation of my original grammar definition.  It
isn't an either/or situation.  A work can have mixed authorship.


> I concede that copyrightable matter can survive into a machine-generated file.  And
I maintain that there can be other conditions on the use of such a file other than by virtue
of it containing portions in which copyright subsists.  For example, I don't think the Copyright
office is going to accept registration of compiled binaries any time soon, even though there
may be conditions on the license of the source code that carries over onto those binaries.
> And, yes, it is murky all the way down.
>  - Dennis
> -----Original Message-----
> From: Dennis E. Hamilton []
> Sent: Wednesday, September 28, 2011 22:32
> To: ''
> Subject: RE: A systematic approach to IP review?
> Not to put too fine a point on this, but it sounds like you are talking about boilerplate
(and authored) template code that Bison incorporates in its output.  It is also tricky because
the Bison output is computer source code.  That is an interesting case.
> In the US, original work of authorship is pretty specific in the case of literary works,
which is where software copyright falls the last time I checked (too long ago, though).  I
suspect that a license (in the contractual sense) can deal with more than copyright.  And,
if Bison spits out copyright notices, they still only apply to that part of the output, if
any, that qualifies as copyrightable subject matter.
> Has the Bison claim ever been tested in court?  Has anyone been pursued or challenged
for infringement? I'm just curious.
>  - Dennis
> -----Original Message-----
> From: Norbert Thiebaud []
> Sent: Wednesday, September 28, 2011 22:11
> To:;
> Subject: Re: A systematic approach to IP review?
> On Wed, Sep 28, 2011 at 7:55 PM, Dennis E. Hamilton
> <> wrote:
>> I'll stand by my original statement.
>> I'm not going to get into the Pixar case since it doesn't apply here.
> I did not say it applied to the Visual studio generated cruft... I
> merely commented on the blanket assertion that 'computer generated =>
> no copyright'
>> The Bison manual may have license conditions on what can be done with the generated
artifact, but I suggest that is not about copyrightable subject matter in the artifact.
> Actually it is. The only claim they could legally have _is_ on the
> generated bit that are substantial piece of code copied from template
> they provide, namely in the case of a bison generated parser the whole
> parser skeleton needed to exploit the generated state-graph. the whole
> paragraph is about the copyright disposition of these bits. and in the
> case of bison they explicitly grant you a license to use these bits in
> the 'normal' use case... my point being that the existence of that
> paragraph also disprove the assertion that 'computer  generated => no
> copyright'
> You could write a program that print itself... the mere fact that it
> print itself does not mean you lose the copyright on your program...
> That being said, I do think you are on the clear with the Visual
> Studio generated cruft... but not merely because there is 'computer
> generation' involved.
> Norbert

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