Contract Case Could Hurt Reverse Engineering

An anonymous reader writes "InfoWorld has an article about how a 'U.S. Supreme Court decision could call into question a common practice among software companies: studying competitors' products to improve their own offerings.'"

Comments

Could it be much worse

[Anonymous Coward]

DMCA is already crippling enough.

Re:Could it be much worse

[arivanov]

Bollocks. Nothing to do with DMCA. Note the quote: Meeker noted that Baystate had reproduced a handful of errors in Bowers program. Kann, Baystate's lawyer, said all the errors came from Bowers' user interface, not the underlying code.. This sounds like theft to me. If you rev eng you usually find errors and fix them. If you copy without going through the effort of understanding how things work you get the errors copied as well.

Re:It's about time

[Anonymous Coward]

What about for making things compatible with it, or for research? What if someone slaps a EULA on a virus, and then sues anti-virus researchers?

Sounds like copyright infringement instead...

[benjamindees]

Meeker noted that Baystate had reproduced a handful of errors in Bowers program. Kann, Baystate's lawyer, said all the errors came from Bowers' user interface, not the underlying code.

Re:Sounds like copyright infringement instead...

[cait56]

My initial read is somewhat similiar. A judge has come up with faulty reasoning to support what seems right. But they should come up with the correct rationale. The rationale offered would be chilling.

If customers have the right to examine products, and determine what they like and dislike about each, then it isn't much of a leap to say that producers have the same right to examine their competitor's products.

But there's a line somewhere between studying what some product does, and essentially stealing its research. Whatever the protection mechanism should be, it should stop lazy companies from simply stealing interface designs from other companies rather than paying to develop them on their own.

So it is pretty much copyright infringement, except that some allowance has to be made for the ability of the market to clone interfaces from dominant providers.

Copyright also provides an excellent insight into what contract law must not be allowed to create here. No author is allowed to sell their mystery to the general public except that no other mystery writer may read it for the purpposes of evaluating what was effective or ineffective.

Indeed many writers want to aware of what others have written, so they can ensure that they don't inadvertently write something too similiar to an existing book.

The bottom line is that the term "reverse engineering" should never be applied to observing the external behavior of a product. To me that term implies trying to figure out how the product works, not to trying to figure what the product does.

Slavishly copying what a product does, before the product has an established user base, also strikes me as improper copying. I'll admit I do not know how to define that line. It may be similiar to judgement calls made on when fictional characters have achieved "cultural icon" status.

It's what the consumers want.

[aerojad]

If consumers go out and buy software to preform a certain sort of task, doesn't everyone involved have the right to make their own product like that to try and compete? Ford gave us the car, but other companies could take a look at it and try to improve upon it. How many resturants and burger joints are their in existance? How many computer operating systems are there? How many web browsers? How many things or places that do or offer the same thing as others, just at a different price, or in a different form, look, shape, etc.

Unless it's so blatant that the company took everything down to the GUI in reverse engineering, it's just trying to better the same service, thus helping out competition, lowering prices, so on, so forth.

Re:It's what the consumers want.

[kcbrown]

You have to remember that Copyright covers the original work as well as derivatives.

[...]

Back to the issue of derivative works. If the characters and setting of a novel are protected (in and of themselves) by Copyright ...

If you're right about how "derivative works" is interpreted as regards copyright law, then I have to ask: who the fuck came up with the brilliant notion that characters, settings, etc., which are all ideas and not specific expressions, are protected under copyright law instead of trademark law?

The entire purpose of copyrights, specifically, is to protect specific works from being copied. It doesn't make sense to define "derivative work" in any terms other than as it relates to the specific content being protected. So if I take someone's novel and change the character names but keep the wording identical, I have created a derivative work, as would be the case if I had added something new to the original work and attempted to distribute the new whole work (as opposed to just the additions).

But to call something a "derivative work" simply because it makes use of some of the characters and ideas within someone else's work is sheer lunacy.

Put another way: I should be able to write a brand spanking new novel set in the Star Wars universe and involving some of the characters within it, without that novel being declared a "derivative work" and thus a violation of copyright. Why? Because I didn't copy anything except ideas.

If someone wants to protect a name, they can get a trademark. If they want to protect an idea, they can get a patent. And if they want to prevent people from making unauthorized copies of their works, then and only then should they be allowed to use copyright.

Re:It's what the consumers want.

[Twylite]

But to call something a "derivative work" simply because it makes use of some of the characters and ideas within someone else's work is sheer lunacy.

Put another way: I should be able to write a brand spanking new novel set in the Star Wars universe and involving some of the characters within it, without that novel being declared a "derivative work" and thus a violation of copyright. Why? Because I didn't copy anything except ideas.

Really? So you should be able to write a Harry Potter novel, using in your favour the huge success of JK Rowling's work to boost the acceptability and profit potential of your derivative? Do you really think JKR should have to suffer a loss of sales when someone reads your miserable derivative and decides that they don't really like Harry Potter?

So let's start with this: you have a completely wrong notion of what Copyright is intended to protect. Is is specifically intended to protect ideas, not a particular physical object in which they are captured. It is specifically intended to prevent anyone from copying your ideas so closely that they are confusingly similar to or even indistinguishable from the original work. It is specifically intended to protect the intellectual creations of a person from use (without permission) by any third party.

A character and a setting are VERY specific intellectual property or expressions. Although the fantasy and science fiction genres are HUGE, nearly every renowned work has immediately recognisable and distinguishable characters and settings. Middle Earth, Dune, Narnia, the Nautilus, Jedi, Discworld, Gandalf, Vimes, Paul Atreides - what makes you think that you can merely take the VAST amount of "development time" these authors spent on their creations and use it in a novel of your own?

You can prattle on about "should" and "shouldn't" all you like, but this IS the state of Copyright, this IS how it works, and in my not particularly humble opinion you are not only WRONG but a leech that doesn't understand the true source of value or just wants to sit on your arse and have society give you everything you deserve for being such a magnificent gift to this planet.

Re:It's what the consumers want.

[Twylite]

Do you think JK Rowling should be able to write a Harry Potter novel, using in her favor the huge success of all the stories that came before that talk about magic, witchcraft, good, evil, etc., to boost the acceptability and profit potential of her derivative? Well?

"Specific expressions of ideas". Get it? Magic, witchcraft, good and evil are concepts. A boy wizard with a lightning scar on his forehead who attends a school hidden in modern-day England where it can't be seen by muggles is not a general concept. This are very specific expressions of general concepts.

If JK Rowling is concerned about that possibility, then she has a means of dealing with it: it's called a trademark.

Wrong. A trademark could protect the name "Harry Potter" for use in a particular context for the purposes of carry out trade. A trademark does NOT protect her against another author writing a story about a boy wizard with a lightning scar on his forehead who attends a school hidden in modern-day England where it can't be seen by muggles, called John Miles. And unless she trademarks every character and place name in her books, it doesn't stop another author from writing a story about Sirius Black and his escapades at Hogwarts.

Use the right tool for the job.

Copyright is the right tool. You just don't understand it.

And remember the entire reason for copyright in the U.S.: "to promote progress in the sciences and useful arts". Not to make the originators of the works a boatload of money. Not to confer status. To make the world a better place.

Economics 101: We (as in the "Western world") live in a market economy. The premise of this system is that society has at its disposal resources, and each individual must use the resources at his/her disposal to obtain more resources in order to survive, and possibly to prosper. This usually entails exchanging labour for cash, and cash for food, clothing, housing, etc.

The profit motive is thus core to the functioning of a market economy, and a free democratic society. Like it or not. Every government intervention in a market economy is socialistic, intended to restrict the otherwise free ability to trade and profit for some (usually good) reason. For example, unjust enrichment (profit at the expense of another) is outlawed, unfair competition (which has no meaning in a true free market) is defined, consumers are protected by standards of products and behaviour, and so on.

The aim of copyright is to promote progress in sciences and arts. The mechanism through which most countries have elected to achieve this is economic: a protected monolopy over a work, so that a potential creator is given an economic incentive of being able to be the exclusive benefactor of that work for a period of time. In this way there is an incentive to create works that will, eventually, fall into the public domain.

Now, interpreting copyright the way it apparently has been may accomplish that, but I doubt it, considering all of the good stories (as an example) that certainly haven't been published because of this particular interpretation of copyright.

As it happens, I am strongly in favour of reduced copyright durations, especially for derivative works, for precisely the reasons you have voiced, but in conjunction with my knowledge and understanding of why you CAN'T make derivatives as you would like to.

But, as with everything, there needs to be balance. If derivatives were freely allowed, the new Harry Potter book would almost certainly not be going to China, as the Harry Potter works received a VERY bad name there after a very poor (and sordid) derivative was illegally published. That could deprive not only JKR of income, but Chinese people of very good literature.

At the other end of the spectrum, I am frustrated at the lack of ava

Re:It's about time

[anto]

This is the equivalent of stating that the only reason for knowing what voltage your mains power runs at is so you can steal it. While theft is *one* reason for reverse-engineering there are many others. If you want your IP protected don't rely on it being hard to see.

Come on

[SargeZT]

This is pure R&D People. It's been happening for hundreds if not thousands of years. You have to find out the weaknesses and strength's of an opponent, and improve upon both. Not only has this been happenening for a long time, it has moved our economy ahead by setting a standard for companies to adhere to. If Product A dosen't do as much as Product B, it's obvious Product A is going to win the battle.

La la la...

[Ayanami Rei]

Poor baby.

By this logic, you should be able to take apart your car to see what kind of pieces it's made of. God forbid.

It's not the disassembly that's bad, it's when you use it to create a competing product. OTH, if it works exactly the same, the original designers will be able to see that it's bug-compatible (including race conditions), and thus be able to invoke some flavor of IP violation.

And when your oh-so-precious product crashes my systems and I want to single step through it to see what you fucked up, what tools will I be able to use besides these illegal tools to give you a point to start debugging at?

Re:Errors replicated?

[The Vulture]

Not necessarily.

The company that I used to work for was making a router-type product for the cable internet industry. Seeing as Cisco is considered the industry leader, it was highly desirable to copy the Cisco CLI commands, down to the exact command syntax (where possible).

The reverse engineering in my particular case involved typing in commands at the Cisco CLI, and then looking at either the configuration file, or SNMP MIBs to see the results (which is considered reverse engineering, even though I didn't look at any Cisco code).

Now, suppose I put in a very counter-intuitive command, or even a command which was considered to be "in error" (i.e. confusing syntax, whatever). Would you say that something fishy is going on? We're just trying to keep the interface as similar to Cisco as possible.

The article said that the error looked to be in the UI and not in any underlying code. Of course, the question is, were both programs done in the same language, use the same GUI toolkit, etc? Look and feel alone do not constitute full-blown "code-ripping", as we used to call this years ago.

-- Joe

My take

[Raul654]

(snip) ...Baystate claims it looked only at Bowers' user interface in order to improve its CAD software product. "There was no evidence of cracking encrypted source code or anything of that nature," said Bob Kann, Baystate's lawyer, of Bromberg and Sunstein, in Boston. "This may cause havoc in the industry. Before this case, it was perfectly legal to evaluate a competitor's product."

But Bowers' lawyer countered that Baystate had two weeks in its development schedule to examine Bowers' software, giving the software vendor time to look at more than the user interface. "They had two weeks to reverse engineer his software," countered Bowers' lawyer, Frederic Meeker, of Banner and Witcoff, of Washington, D.C. "Two weeks is a long time -- that's a lot of looking."

...

"From a small software company's perspective, it's virtually impossible to recover your investment without some sort of protection," Meeker said. "That's a standard provision ... you put in a contract with another company so that they can't reverse engineer the trade secret out of the product. That software took years to develop."(/snip)

Ok, so this boils down to a question of fact, which is a question for a jury to decide. The burden of proof ["preponderence of the evidence" in this case, IIRC] rests squarly on the plantiff.
That question is -- did Baystate decompile Bower's cad program to make their own. If so, they are guilty. If Baystate did not - if they wrote their program to match the look, feel, and usabilty of Bower's program, then they are obviously not guilty, shrinkwrap license not withstanding. I don't think you could possibly claim having a certain user-interface or user-available options are trade secrets, merely how you implement them.

Re:It's about time

[RTPMatt]

wait just a second, just what is ment by "studying competitors' products"?

does this mean that if i have used M$ office say, at my college, i am unable to contribute to open office, or some other office type project?

this is incredibly stupid in my (uneducated) opinion. whats next, are we going to tell authors they cannot write books about a subject if they read a different book on the subject beforehand?
fantastic, only people completly uneducated in a subject will be able to do anything in the field. this should make for some fantastic inovation!!

-matt

Re:It's about time

[Waffle Iron]

Did you type your comment on a PC? If so, was it an IBM brand PC? If not, you're using a totally reverse-engineered machine, and by your definition that's illicit stolen goods. You're no better than a common thief.

To atone for your sins, you need to take a cue from Senator Hatch and physically destroy your machine. Now.

Reverse engineering is good

[hibiki_r]

Allowing a license like this to stop reverse engineering/product evaluation is probably one of the worst things you can do to the software industry today. What if MS or Apple had done just that while releasing Windows/MacOS? Would the maker of any window manager that had window title bar, or a start menu, be sued for reverse engineering?

Spending two weeks reviewing the competition's product seems like a perfectly reasonable amount of time to learn its strengths and weaknesses. The only way to compete in an already established market is to build a better product than your competitors (cheaper/better/faster). How are we supposed to do that w/o being able to analyze the competitors' product?

Also, if reverse engineering can be banned, why try to patent anything? Patents eventually expire. A "trade secret" like, lets say, your basic UI design, that is only communicated to your customers after you've accepted the license, seems to me just as good protection as a patent, since anyone copying has broken your license, but offers no expiration date.

Hopefully the next time someone is set to court for something like this the result will be different. Reverse engineering is key to allow competition, the key principle to our economy. Undermine competition, and you are undermining one of the key foundations of our society. I just hope the next judge undestands that

Re:It's about time

[shepd]

>Reverse engineering is nothing more than the common theft of intelectual property.

Please show me how, when I draw a schematic diagram of my motherboard ABiT's intellectual property has been removed from their presence, never to be replaced, and has entered mine. Show me how they will no longer be able to manufacture this motherboard if I made duplicates, as they would no longer have the design for it. Show me how nVidia's design documents would be magically transported into my home if I should reverse engineer their nForce2 chipset.

Theft (in the sense you are using the word) cannot ocurr without a loss:

theft

\Theft\, n. [OE. thefte, AS. [thorn]i['e]f[eth]e, [thorn][=y]f[eth]e, [thorn]e['o]f[eth]e. See Thief.] 1. (Law) The act of stealing; specifically, the felonious taking and removing of personal property, with an intent to deprive the rightful owner of the same; larceny.

Note: To constitute theft there must be a taking without the owner's consent, and it must be unlawful or felonious; every part of the property stolen must be removed, however slightly, from its former position; and it must be, at least momentarily, in the complete possession of the thief. See Larceny, and the Note under Robbery.

Source: Webster's Revised Unabridged Dictionary, © 1996, 1998 MICRA, Inc.

Next time, use the word steal. Then at least you can suggest reverse engineering that intellectual property was like "stealing a kiss" (which is never a bad thing, so if you were to rebut me as such, I'd leave it at that).

Either that, or get off the soap box and use the words people in a real court have to use: Violation of the right of the plaintiff to enjoy monopoly status on a copyrighted design or patent.

Re:Errors replicated?

[geschild]

"There's matching behavior, and then reimplementing without first understanding. The latter is 1) irresponsible 2) lazy, 3) contemptable, and those that practice should not be protected by reverse-engineering rights. I claim that shouldn't be called reverse-engineering, but something else."

Correct. That term would be "copying" and please let's not get into that area? I've seen enough on copy protection lately... ;-)

Missed the point...

[sbryant]

The point is not so much that reverse engineering - it's more the whole thing about the EULA. Here's a quote:

The legality of this practice, called reverse engineering, is in question after a lower court found that a software company had violated a shrink-wrapped license contract when it reverse-engineered a competitor's piece of software.

Another quote:

Although the breach of contract ruling applies only to the U.S. Court of Appeals for the Federal Circuit, the Supreme Court's lack of action could embolden other software companies to prohibit reverse engineering or take away other fair use rights allowed under copyright law by including such prohibitions in an end user license agreement, said Karen Copenhaver, a patent and intellectual property lawyer with Testa, Hurwitz and Thibeault, of Boston.

.. and another:

The impact of the case, said Copenhaver, is that end user license agreements could become more restrictive. "Saying you can reserve that [reverse engineering prohibition] in a shrink-wrap license is saying a company can put virtually anything in a shrink-wrap," Copenhaver said. "Now there are very few limitations on what people will try to put on a shrink-wrap."

The EULA terms are unavailable at the time of purchase, so you might be buying software you can't even use! This was the reason that Germany decided that such licences are not legally binding (which avoids the other problem entirely). What other rights will they to take away from us?

Does the US have a concept of inalienable rights? (i.e. rights that can't be taken away, for those who don't speak such good English) Even if reverse engineering is not inalienable, I'd be trying to show that the buyer was forced to give legal rights, without being able to find out about it before purchasing.

-- Steve

Re:Missed the point...

[kcbrown]

Does the US have a concept of inalienable rights? (i.e. rights that can't be taken away, for those who don't speak such good English)

It has the concept. But given how things have been going here in the last 10-20 years or so, I'd say that "inalienable rights" are only a concept, even though there are some explicitly listed in the Constitution.

Not even those are "inalienable" in a country where the letter of the law, and not the intention of the law, is the only thing that counts in court (well, that and how big your pocketbook is).

As a licensed user of Bower's software in the 80s

[Anonymous Coward]

As a licensed user of Bower's software in the late 80's I was never very impressed with the program. I keep hoping that it would turn into a useful tool but it never did and Bowers wouldn't take any input from his users. I eventually discontinued my subscription (that's how it was distributed). Honestly, I'm surprised anyone would want to steal it -- it's hard to imagine something that could have been worse. Most likely the reason he went out of business is because his software, um, sucked.

Anti Trust

[lllama]

I thought one of Microsoft's arguments in the anti-trust case was that competitors could always reverse engineer the Win APIs (I'm not MS bashing, I just can't think of any other cases).

Why prohibit? Because you're too stupid to protect

[Groote Ka]

Why would you prohibit reverse engineering? Probably because you're too stupid to protect your ideas otherwise. When a piece software takes you years to develop, there's surely something ingenious and original, so copyright will definitely protect you. For the code, for the lay-out etc.

Next, there are patents. I know this is a difficult one (especially at /.), but when you have developped some groundbraking application, in my opinion, you have the right for a patent as a reward. Should it be 20 years? That's another question.

In this way, there's no problem with reverse engineering, as there are no trade secrets anymore.

And what's next? Some rule that I am not allowed to open my computer to look what's inside and check what additional piece of hardware I need? And that this is enforced by putting all hardware in mould (same stuff they use for ICs)?

In my opinion, software (plus processor) is nothing more than a flexible way of setting up technical stuff; what you can do in software is also possible in hardware. Why treat software different and prohibit reverse engineering?

I suspect what happened...

[Ath]

There were two claims here in the lawsuit: 1) breach of the licensing contract and 2) patent infringment.

My guess is that the appellate court upheld the trial results in their entirety. As I did not read the appellate court opinion, who knows. The Supreme Court did nothing. They did not agree or disagree. They just chose not to hear the case.

The patent claim was probably pretty clear. But I suspect that the breach of contract claim was a tougher one, as the common law concept of reverse engineering is pretty well accepted. I would hope if reverse engineering bans in EULAs become common practice, the courts in general will apply the long standing common law rights of reverse engineering.

As the article pointed out, the plaintiff is very sympathetic in this case (just like in the McDonald's spilled hot coffee case).

We will see what happens.

Re:Algorithms should be public-domain

[kramer2718]

Actually, my justification was not I did it in school and got away with it. My justification was more that algorithms are more mathematical discoveries than inventions. I guess the same could be said of many inventions (medecines are just biochemical discoveries).

I just really think it would benefit society most if algorithms were public domain. Let's face it most algorithms are developed in academia and fall into the public domain if the university doesn't patent them, but most of the funding for this research comes from government and corporate grants not from patent-royalties. Besides, I think code encryption and obfuscation provide plenty of protection for corporations.

Hmmm. Performer protocol, not bad...
Actually, that's somewhat similar to an idea I had...
It might greatly benefit society if the government applied eminent domain to IP. Suppose I make an invention that could greatly benefit society, but I'm not liscensing it cheaply enough to benefit many people. The government could pay me a fair price and then place my invention in the public domain. I definitely think the government should do this with the AIDS drugs so that people in Afric/Russia/etc. can afford them.

Re:Errors replicated?

[stephanruby]

Seeing as Cisco is considered the industry leader, it was highly desirable to copy the Cisco CLI commands, down to the exact command syntax (where possible).

It's a good theory, but it's not applicable to this case. It's obvious from the article that the original programmer of this application wasn't the industry leader. May be there is another perfectly good explanation to copy his errors, but personally I just don't see it.

In 80 man hours?

[Anonymous Coward]

From the article:

'Bowers' lawyer countered that Baystate had two weeks in its development schedule to examine Bowers' software, giving the software vendor time to look at more than the user interface. "They had two weeks to reverse engineer his software," countered Bowers' lawyer, Frederic Meeker, of Banner and Witcoff, of Washington, D.C. "Two weeks is a long time -- that's a lot of looking."'

These guys obviously don't know anything about software or software engineers. Two weeks is barely enough time to do the project plan. It would take months to execute a serious reverse on a product like this.

Re:It's about time

[MidnightBrewer]

Reverse engineering does not require that you look at the source code. To make reverse engineering legal, you specifically should *not* look at the source code. The idea originated with the original IBM chip clone, where basically an engineer with no prior affiliation with IBM products would feed information into the chip and document what came out; by dint of careful testing, they were able to reproduce the functions of the chip without actually knowing what the insides looked like.

It's good for end users of a particular product (in my case, 3D software), when the authors of your favorite software can at least play around with the competitor's software. As long as they're not cracking code, this ability to look at the competition doesn't guarantee that they'll be able to beat them out or even match them, but it does help them compete.

What's next? Are we going to start telling auto manufacturers that they can't look at each other's cars when they're driving down the road?

Re:Ridiculous...

[GrouchoMarx]

At the rate we're going, Ford won't be allowed to take apart Chevys to see how they work... McDonald's employees will be jailed when they eat at Burger King... and software engineers who look at competitor's interfaces will be blinded with hot irons.

OK, who the heck modded this Funny? There's nothing funny about the world that we're building for ourselves, where the very act of thought becomes illegal because it's based on some other thought. I want a +1 Scary, or +1 Orwellian-But-True. That would be more accurate than +1 Funny.

Fair Use

[Crazy Viking]

This is just another good argument for the US to adopt some sort of fair use legislation. Fair use in some countries include reverse engineering and copying copyrighted material for own use. For instance, in Norway those who have bought a copyrighted material have rights which cannot be limited by any license agreement. Some forms of reverse engineering are protected under this legislation.

When is the US going to start living up to its original ideals and protect the freedom of individuals? These days it sounds much more like the "Land of the Properly Set Up Free" to me!

my stuff

[oohp]

Since is *my* hardware and I paid for it, I should be allowed to reverse engineer it. So what if the competitiors reverse engineer your stuff? It only stimulates companies to do better stuff. Just embed everything into a monolithic structure if you want to protect your stuff. I'm not talking about huge integrated circuits, but the whole thing embeded into some kind of plastic/whatever mass. No need for a court decision here. No need for lawyers to collect more fees.

Bleugh, I'm sick of the whole business

[Rogerborg]

Remember when development was about innovation rather than litigation?

I'm sick of it. I'm sick of having to pay IP lawyers to review everything I do. I'm sick of seeing farcical lawsuits over copied binaries (c.f. Blizzard versus bnetd), when any competent engineer knows that decompiling a binary gives you an incomprehensible, unmaintainable clusterfuck that you'd be insane to use (errors and all) rather than implementing your own solution. I'm sick of hearing about David versus Goliath confrontations as though we're all supposed to be rooting for David. And most of all I'm sick of reading mealy mouthed legalese arguing (for twelve years!) over the exact meaning and applicability of sub-paragraph 67b/6, rather than a court simply asking what's right.

Re:Errors replicated?

[Natalie's Hot Grits]

have you ever heard of being bug compatible with another program? When you emulate an interface, you need to be not only copying what is considered "properly running interface", but you also must be emulating any errors of the interface. The reason is that you don't know what are errors and what is a desired effect. If you were to release a clone of a program, and you want the interface to be the same, then their interface bugs should show up in your code. If not by accident (not usualy) then intentionally (usually how it happens in a reverse engineering project).

Infoworld article lacks depth

[miu]

Better information available at techlaw

Re:Ridiculous...

[mpe]

At the rate we're going, Ford won't be allowed to take apart Chevys to see how they work... McDonald's employees will be jailed when they eat at Burger King... and software engineers who look at competitor's interfaces will be blinded with hot irons.

Not exactly funny since there actually is a case of a Coke delivery driver being sacked after being caught drinking a Pepsi. (Or possibly vice versa.)

Re:Algorithms should be public-domain

[Jerf]

I guess the same could be said of many inventions (medecines are just biochemical discoveries).

One of the justifications for medicinal patents is that medicines are not Just biochemical discoveries. In fact, in order to be a useful medicine we do not necessarily need to know the exact molecular makeup.

Two things are necessary:

• A process for manufacturing the medicine practically, which may be extremely complicated and non-obvious.
• Knowlege about how to apply the medicine to best effect, which requires painstaking experimentation.

In pure patent theory, what the patent protect is the first one, and theoretically you can make the same medicine in a different manner and patent it yourself. Realistically in the current environment, I wouldn't recommend that.

For medicine, you also need FDA approval, but that doesn't apply to most things.

Neither of the major concerns apply to software; if you know the algorithm, implementation is typically trivial, a matter of transliteration (as opposed to even translation; there's a difference). And figuring out how to best apply the algorithm is usually trivially obvious in what it does. (Now, noticing there's a better algorithm isn't always so easy...) So algorithms aren't like other physical inventions, since physical inventions typically require a description of how to practically create them.

Re:Ridiculous...

[Anonymous Coward]

Don't you know that all car companies do more than this? They don't just buy a competitor's vehicle and drive around for awhile, they tear the thing down to the component parts.

Ford (or GM or Honda or you name it) buys a competitor's car and completely takes the thing apart, looking for changes since the last model, looking for ideas for their next model, seeing how the thing works.

An equivalent software practice would be dissassembling the code, finding parts you like and recreating them so they work with your code. We aren't just talking gross interface elements (like steering wheels), though they do that too.

The major difference here is the place that software has lawfully. Software, in practice, acts like a tool, but lawfully isn't treated that way. For example a text editor is more or less functionally equivalent to a type writer, but you don't own software (EULAs say so); you pay for usage. Software is protected by copyrights, while physical tools aren't. It probably stems from the fact that the plans for the tool (the source) isn't all that different from the tool itself (the distributed program).

Does anyone know if the compiler generated code or just the source is copyrighted?

Umm... You CAN patent algebraic equations

[JohnDenver]

Patenting things which are fundamental *atoms* of information technology should not be allowed. It would be like patenting algebra or the number pi.

Of course, because patenting an algebraic function is just silly. Right?

Let's get this straight. Software can now be "protected" by copyright, patents, and arbitrary EULAs, but despite just being an advanced mathematical notation, it's not really considered speach because it can have a functional aspect?

Re:Algorithms should be public-domain

[stephentyrone]

Of course algorithms should be patentable - suppose I come up with a great new video codec tomorrow, much better than anything else, but I can't patent it, I can only copyright the source code.

Now, I'm faced with a choice. I could develop closed-source software implementing the codec, and refrain from publishing my new algorithm, thus protecting my innovation with the copyright I'm allowed - if I do this, I'll probably make myself a tidy profit (assuming I know someone who knows the least bit about marketing), and be quite happy with the situation.

Or, I could publish the details of my algorithm, ensuring that no one will be willing to pay for my implementation (well, almost no one) - I can't get paid for my innovation, and the companies that already dominate the market will get my R&D efforts for free. They'll put their own implementation into their products, and pocket the proceeds.

Let's say I'm a noble minded researcher; I don't really care whether or not I get rich off my invention - on the other hand, I'm not stupid, I don't want anyone else getting rich off of it if I'm not getting some of the pie. Clearly, I'm going to keep my source closed, I'm not going to publish. This prevents my algorithm from being used in open-source products, blocks other researchers from extending and improving my results and generally holds back progress.

On the other hand, suppose that I can patent my great new codec. Now I have a third option. I can patent it, and set up a reasonable licensing scheme: you're free to implement my for private non-commercial use, research, etc. If you're getting paid from your implementation, then I want a cut of it, too. Now I can publish, its possible for the open-source and academic communities to use my great new invention, it's available for more research work, and at the same time, I can prevent other people from getting rich off of my work without also compensating me. This is *exactly* why patents exist: to allow people to profit from their work without impeding the flow of "progress".

Now, am I a loony git who thinks that *any* algorithm should be patentable? of course not. There's a reasonable standard, and it's illustrated perfectly by my previous example. An algorithm should be patentable only if the difficulty/effort in creating the algorithm sufficiently exceeds the difficulty/effort in implementing the algorithm.

Why this standard? If the "implementation cost" far exceeds the "invention cost", then no one's going to want to use their own implementation; they'll happily pay for mine, and a mere copyright on the source will suffice to protect me. Furthermore, the fact that the implementation cost far exceeds the invention cost is a strong indication that the algorithm in question fails to qualify as something that most people in the field wouldn't have thought up in the same situation (this should be a necessary standard for ALL patents - they should be INNOVATIVE).

On the other hand, if the "invention cost" exceeds the "implementation cost", then everyone else will develop their own implementations rather than use mine if the algorithm itself isn't protected; Conversely, since the invention cost/difficulty/effort/etc was so substantial, my invention is exactly the sort of thing that should be protected as innovative - something that the average person in the field wouldn't have thought of.

It should be noted that this requirement that the cost of invention far exceed the cost of implementation would actually eliminate the vast, vast bulk of software patents - which is a good thing. Patents such as "one-click ___", where you see it in operation without any knowledge of its guts and immediately know how it works, or the marching cubes algorithm (patented by HP, I believe), which is just what any sensible person with some background in computational geometry or algorithms would do, without much thought, should be gotten rid of. In all likelihood, this standard should be applied across the board, not just in software/algorithms. But should patents be done away with entirely, even in a restricted field? Of course not, and I think my example establishes that pretty clearly.