Software Freedom and Krause v. Titleserv

Greg Pomerantz pointed me to this article on a recent 2nd Circuit copyright decision. The case basically disambiguated the term "owner" in 17 U.S.C. §117 (a). It may seem nit-picky and obscure but (AFAICT, IANAL, OMG) this decision has good implications for free software hackers. Because Greg continues to refuse a blog of his own, I’ve agreed to write this up to spread the good news.

As the article points out, §117 (a) of the copyright code provides an affirmative defense against copyright infringement for anyone who owns a physical copy of a computer program and who makes an adaptation "as an essential step in the utilization of the computer program in conjunction with a machine," and uses it "in no other manner." Basically, owners of programs can modify said programs.

The case in question is Krause v. Titleserv Inc., 03-9303. Here is the back story: William Krause was a programmer and consultant hired by Titleserv to write a series of programs over the course of a decade. When Krause left Titleserv, he left the company the right use the software but not modify it. Using technical means that are not entirely clear from what I’ve read, he left the software "locked" so that the company did not have access to source code or the ability to modify the program. Evidently, the technical means were not very good ones. Titleserv managed to sidestep these restrictions and bring the software back into modifiable source form. They modified the program to keep it working a number of times and in a number of sometimes rather intrusive ways.

As I mentioned above, copyright law says that the right to modify is something all owners have. As a result, the core argument in the case boiled down to Krause saying that the owner of the software was the person who held a title to the software — unsurprising himself in this case. Titleserv, predictably enough, argued that the owner was anybody who rightfully possessed the software and that any rightful possessor of a copy was an "owner" and could modify software without any risk of infringement.

Second Circuit Judges Pierre Leval and Robert Katzmann sided with Titleserv. Leval said that courts should, "inquire into whether the party exercises sufficient incidents of ownership over a copy of the program to be sensibly considered the owner of the copy for purposes of §117(a)." Rightful possession is ownership.

Krause also argued for a narrow definition of "essential" that would only cover modifications necessary to keep the program functioning. The court was willing to side with Titleserv again and adopt a broad interpretation of "essential" that covered the wide range of changes that Titleserv made: everything from bug fixes to updates to cosmetic changes.

For free and open source software hackers, this is great news: a broad definition of owner in terms of software is fantastic for software freedom. The implications of ownership as defined as rightful possession are not necessarily limited to a distributed right to modifiability by groups other than the title holder although alone this is a major victory. Apparently, Titleserv sidestepped what sounded like sort of copyright protection device. The ability as the owner to do this on software one rightfully posesses is great. It remains to be seen (or explained) how much or how little good can be squeezed out of this.

The Debian-Legal mailing list talks about the "tentacles of evil test" which is a hypothetical situation that the list uses to evaluate licenses. Basically, the test tries to prevent against bad things happening to rightful possessors if the owner or the ownership for the title of a piece of software falls within the grasp of some nasty anti-freedom entity. I agree that the sentiment is an important freedom concern (although am not always happy with the way it has been employed and applied in the past on the list). This case seems to mean that we can worry a bit less about those tentacles in many situations.

While I’m not happy with the idea of software having owners, this case defines owner in a massively less centralized fashion that many of us had assumed was the case and this is a victory for software freedom.

If you’re really interested, here is another article and you can find the full case on Lexis and elsewhere.

Author: Benjamin Mako Hill

Rebel with rather too many causes. And your host!

2 thoughts on “Software Freedom and Krause v. Titleserv

  1. This actually seems more relevant to the Dictator Test, which suggests that licenses should not make restrictions that go beyond what copyright allows by default.  This case successfully shows that if you rightfully have a copy of the software, there are no legal obstacles in the way of Freedom Zero.  (DCMA excluded, it being insane and broken.)

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