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British Court Issues Bizarre Copyright Ruling
dipfan writes "In a re-run of the Lotus v Borland case that went to the US Supreme Court, the High Court in London has allowed a copyright infringement battle between two rival airline booking programs to go to trial, despite agreement by all sides that the two programs are written in different code. The airline Easyjet is being sued by software house Navitaire, creators of an online booking system called Openres, over Easyjet's booking system named eRes, developed by Bulletproof Technologies of California. Openres was written in Cobol, while eRes was written in Visual Basic, and the programs are also different in structure.
But, according to the FT article: 'Parallels had been drawn between appropriating the "functional structure" of a computer system and commandeering the plot of a book, the judge noted.' If Navitaire wins, then any program that works like another program - even if written in different code - could be vulnerable. What happened to the principle that you can't copyright an idea? Bulletproof is counter-suing
Navitaire in the district of Utah."
This is silly. I am suing all males of the human species, because their penis infringes upon my own penis's "functional structure" (although I admit that due to their vastly smaller size, our structures are different).
Come to think of it, I guess that my father would call me out on the whole "prior art" thing there.
it's like the malloc (sp?) thing all over again. two airlines needing a piece of software to do the SAME THING. How many correct ways are there to do it?
From an outsider's point of view, a stranger to word processing, one would draw EXTREME similarities to MS Word vs. a Corel alternative.
Is it copyright infringement? They both allow you to do the same thing in almost exactly the same way. .
seems crazy right?
-rich
This is a place where the definitions in copyright and patent law become sketchy and begin to blur together. The question at hand seems to be one of whether GUI's and other elements of program I/O (this so-called "functional structure") come under copyright protection as elements of a creative rendering or patent protection as means of achieving a computational purpose; the idea that such elements may be shakily protected by both seems dangerous and a strong possibility, in Britain's case anyway (although the actual case has yet to commence).
But on the other hand if they loose that would make a legal precedence that copyright doesn't cover functionallity which would be a good thing.
Navitaire was arguing that BulletProof Technologies had studied the Openres system closely and produced a system that operated in the same way.
Okay, so the case has only been declared tryable, not that there was infringement. And though I don't agree that "studying closely" is an issue, I'm not sure we can say that the fact that they're written in a different language automatically disqualifies it from an IP violation.
If I take your Fortran application, use g77 to convert it to C++, change your name to mine and search-and-replace a few things, wouldn't I still be violating your IP?
Ah, yes... it's copyright case... but, Henry Potter and the Room of Mysteries, anyone?
~ Whence do you come, slayer of men, or where are you going, conqueror of space?
So what if it's written in different code? I can play pop songs on a trombone and record it. It's still the same song and it's still infringement.
Copyrighting an idea is wrong, but that's not what the question is here. This is an example of determining whether both products implement the idea in a close enough way to be infringement and code is completely irrelevant to that discussion.
--- Don't be a player hater: I meta-mod ALL negative mods as Unfair.
Cheerio!
-Looking for a job as a materials chemist or multivariat
Travel booking programs are particularly complex and it appears that the two programs here share enough logic for the VB version to be infringing.
It is not unreasonable: if I sing "happy birthday" on the air, I have to pay copyright fees. So if I rewrite someone's code in another language (or even the same language), why do copyright fees not apply?
It is far better that copyright be applied to this kind of case (assuming the infringing program actually is a rewrite, not a coincidence) than patent law. At least with copyright you know that a clean-room rewrite is safe. With patents you won't know until the lawyers knock.
Ceci n'est pas une signature
The case might not have much merit, but there's not enough detail for us to decide that - and no apparent reason to dismiss it as 'bizarre'. Don't you remember that Apple sued M$ over the 'look and feel' of Windows? And if I wrote a program that exactly duplicated the functionality of Warcraft III (even if all the code was my own) do you think I wouldn't get sued by Blizzard? Everything depends on what the patents and copyrights cover.
I copyrighted it, thankyou. You shall be receiving your bill shortly.
"A lot of patents are like this.... How is this different?"
You patent an idea. You only copyright a work.
My local LUG invited a copyright lawyer from Widner last year to come in and talk about some tihng, and he covered this. He told us that copyright law protects not only the form but the basic plot as well. Were Shakespeare alive today, he would have a fairly good lawsuit against Disney for infringing on Hamlet.
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
Actually, the history of 20th century copyright law -- esp. in the US but in Europe as well -- is a blurring of the boundaries between idea and expression, those boundaries being the cornerstone of copyright law previously. This is primarily the effect of movie studios and producers suing people for similar adaptations of similar stories and winning. Siva V. writes about this in Copyrights and Copywrongs. Lawyers for the movie industry went to such lengths to protect their works from imitation that copyright law now recognizes a certain level of idea protection. It's ironic because the film industry got its power in the first place in part because of a strict boundary between idea and expression. But in any case it is not surprising to see this trend manifesting in debates over copyright of computer code.
Ford has filed suit against General Motors for making something that also has four wheels and can transport passengers, by way of an internal combustion engine.
A Ford spokesperson has said: "There will be more lawsuits in the future against other vehicle manufacturers, but we felt like we needed to go after the biggest fish first.
"We realize that this will be met with some hostility, but we are doing this to protect a consumer, we feel that anyone else making such a product is watering down the concept of a 'vehicle' and that having this protected will allow us to continue to innovate.
"Also, we are in talks with SCO to discuss a possible licensing scheme, whereby all owners of non-Ford cars can pay a fee to have their cars properly licensed for Ford's IP."
Perhaps this a case of mad judge disease!
Anyone who thinks the courts are logical should remember that in France a court found a cow guilty of murder and in Salem a court convicted women of being witches.
Not much has changed since then it would seem.
No, there could be something to this case.
Consider the original COBOL work probably lived on some big iron, and like our legacy COBOL systems, shipped with the code.
Maybe Easyjet (or some co-company) was once a licensee of the original work. Rather than pay for an upgrade, they hire a handful of geeks to port it to VB.
There's infringement there - it's not an original work.
It's more like taking a french novel, translating it to english, and slapping your name on it.
Or taking some GPL project, running it through a C to (whatever language) translator, and selling it as your own.
The judge merely allowed them their day in court, which sounds like the right decision to me.
I don't need no instructions to know how to rock!!!!
And that's a bit of a problem; lawsuits like the one described in the story are considered pretty normal in the music industry; if OpenOffice and MSOffice both were songs, OpenOffice would probably have to pay some kind of fee to MSOffice for using their intellectual property and we'd all consider that normal...
Anyway... It'd be interesting to hear what other people think about this because to me it is a fundamental problem with how I view the whole copyright/patent/freespeech-discussion.
One solution would be to consider the sourcecode a work of art and the resulting binary an apparatus but that would be ridiculous since it would introduce a huge legal difference between scripts and binaries which would be great to feed a huge discussion but clearly is not a practical solution. So maybe the question we (or at least I) should ask ourselves first, is "What exactly are the differences between sourcecode and compiled sourcecode from a moral and IP point of view?"
0x or or snor perron?!
This case is being compared to Lotus v. Borland. In that US case the trial court initially got found infringement. An appellate court overturned the decision, and the Supreme Court was split 4-4 with one judge not taking part. That means that the Lotus v. Borland case is the law in only one circuit in the US. I would expect the courts in other circuits might very well reach a different decision.
I personally experienced that in a big way. A little over two years ago I set out write the first-ever, book-length chronology of Tolkien's complex Lord of the Rings. Would it be useful? Many Tolkien fans have told me it is. Is it legal? Well that depends not on the law, which applies to the entire country, on which federal court circuit you happen to reside in and which judge you get.
The Second Circuit (New York) is nasty. With perhaps one marvelous exception, the judges seem to be owned, lock, stock and barrel, by the holders of lucrative copyrights. The district's most recent judicial disaster (there are others) was a series of much criticized 1998 decisions centering on Castle Rock and and book called the Seinfeld Aptitude Test. Though their arguments were muddled (a court in another circuit has termed them "frivilous"--a major insult), the courts seem to be claiming that only the copyright holder can do reference works on fictional works. Tolkien, in my case, "owned" his literary creation to the extent people like me couldn't describe it, we could only comment on it as a piece of literature.
Legally, that's nonsense. The law lists the sorts of derivative works a copyright holder owns and none come close to being a reference or guide to some work of fiction. In fact, there are reference works and guides to fiction (i.e. operas) reaching back into the 19th century.
But that is the law, at least for now and at least in the Second Circuit. As a result, many publisher are steering away from publishing on modern fiction altogether. The legal counsel at one university press told me they were not publishing anything on contemporary fiction to avoid lawsuits they could not afford.
In my case, the Tolkien literary estate, attempting to build on those bad Second Circuit decisions, took me to court for copyright infringement in the Ninth Circuit (Seattle). Since I'm a small one-Mac publisher, they probably thought they had a weak defendant who would make it easy to spread those bad decisions beyond the Second. (In four years, no other court had accepting the reasoning in Castle Rock.)
Unfortunately for them, I'm stubborn and fought back, repersenting myself (pro se) for most of the lawsuit. In the end, my arguments for fair use proved even stronger than I had initially thought and, seeing that, the Tolkien estate lawyers wrote the judge just before summary judgment, expressing a willingness to settle out of court. The judge, for her part, made sure they knew they didn't stand a chance of winning by dismissing their lawsuit "with prejudice" this past January. We concluded an out-of-court settlement a few months ago and the book, Untangling Tolkien, should be coming out this week or next. It's already listed on Barnesandnoble.com.
In a sense, I "won" in part because: 1. Unlike most publishers, I'm in Seattle (9th) rather than NYC (2nd). 2. I'm so poor, their initial demand for $750,000 damages did not scare me in the slightest. 3. I've read enough in law I could do fairly well defending myself. If I hadn't, I'd now be burdened with perhaps $80,000 in legal fees. 4. I've very stubborn. 5. Overconfident, they made a number of critical blunders. 6. I had a smart judge, one unlikely to be snowed by their many hundreds of pages of bogus claims. (Their technique for manufacturing "plagarism" was so carefully refined, it had me taking from an obscure Tolkien book I'd never seen.)
But it is important to remember that there was no way I could be assured in advance that what I was doing was, beyond a doubt, legal. I had the letter of law and the weight of law before 1998 on my side as well as a number of post-1998 decisions going contrary to
I believe that the relevant US case here is Whelan v. Jaslow, in which the court finds that copyright protection of computer programs may extend beyond the programs' literal code to their structure, sequence, and organization.