Slashdot Mirror
Lawsuit Filed Against Software Copyright
mdielmann writes "CNet has a story about a lawsuit asking for copyright protection to be removed from software, while leaving patent protection in place. Intellectual-property consultant Greg Aharonian hopes to convince the court that software makers can protect their products adequately through patents, which provide more comprehensive protection but are difficult to obtain and expire in a shorter period of time. It looks like this would hamstring licenses such as the GPL, which are often based on copyright privileges, while leaving OSS vulnerable to patent infringement. Apparently, he's been working on this for the last three years."
Regardless of hwo this might play out, and its implications, I can't see this being retroactive to software that already exists... that certainly would be pulling the rug out from underneath alot of companies feet.
I cant see MS not spending a grip to make this go their way either.
There's nothing Intelligent about Intelligent Design.
Who is he sueing? It doesn't mention. It should be the other way around. Copyrights should be allowed, software patents should not. Software patents are what causes most of the trouble.
First of all, every major software company including Microsoft will be against this idea, and the BSA with its powerful lobby, is against this idea. This would make it much more difficult for them to protect their software. Patents are just the icing on the cake for software companies. They are much more difficult to get. Copyright has always been a given.
The idea that software could not be copyrighted but books, music, etc. could is hypocritical. Copyright would have to be removed from all those forms of media to be consistent with software not being copyrightable.
It'll never happen.
Doing the exact opposite would be sane. This isn't.
Patents take time and money to get, something a lot of people don't have time or money to do.
Free Mac Mini
A software is a product, and it employs some sort of algorithm or algorithms. So let's say I use an algorithm that some other company developed. Do I have to pay them?
And yes, Open Source will have a problem. A corporation could easily say "Hey the Open Source implementation that you have of XYZ infringes on my patent on the commercial version".
IMHO, I don't think patents will work for software (at least in this form). It's simply too abstract, and too widespread. Writing a poem and writing an algorithm are two different things. The poet can get money for having his poem published in books. But let's say you come up with a rather innovative and efficient algorithm for doing task X, and you work for a company Y, then Y owns the patent on it. So anyone who wants to use it will have to pay money. But what if you came up with another algorithm that does the same thing? Could they sue? What if you're a small company Z that came up with said algorithm? The big guy could take you out...
IANAL, but our laws for software are probably not mature (and well thought out) enough to deal with this... yet.
Vivin Suresh Paliath
http://vivin.net
I like
Despite initial knee-jerk reactions, I think there is actually some meat in this story. I feel this will generate discussion worthy of the main page. This quote on the limititaions of copyright got my interest: "Until you're sued and a judge makes up his mind about what is the idea and expression (at stake), no one knows," Aharonian said in an interview.
He seems to argue that the patent system, as flawed as it is, has rules that require more complete explaination of what is covered, and has rules covering prior art than the more arbitrary legal tyranny he sees in copyright.
Think about it: Copyright goes away, pirated software becomes legal.
Only in a Slashdot fantasy can a Slackware install turn into several hours of sex . . . . .
1: Arguee that patents are good enough and they can take the palce of copyright.
2: Get told, stop being so fucking stupid, we need copyrights patents are just, well, what do they do that copyrights don't do.
3: Use the counter argument that patents are pointless to get patents removed from software.
thank God the internet isn't a human right.
Part of the problem is semantics. Is the lawsuit intended to remove copyright protection from "software" (In my mind, the compiled and built executable) or from "source code" (the product of a creative impulse and SHOULD be protected by copyright law IMHO.) If the lawsuit helps limit the abuses of copyright law ("look and feel", DMCA contraints, etc) then I agree with the aims completely, but if it intends to remove copyright protection from source code then I think it is a travesty.
Waltz, nymph, for quick jigs vex Bud.
It seems to me that MS has as much to lose as ith *nix people. If there is no copyright on software then the only way to prevent piracy from becomming legal is the click through agreements, and they seems sort of shakey to me, legally. (IANAL. However, as an example, how do you sell a game to a minor since they can't enter legal agreements?) It seems to me this guy has it backwards. Software Copyright GOOD. Software Patents BAD.
HA! I just wasted some of your bandwidth with a frivolous sig!
Copywrights protect code you've written. Patents prevent everyone from writing code.
God spoke to me.
So let's say that software patents become quite common in the USA and Europe. It's the large companies who are going to be flooding the patent offices with filings for anything they can get their hands on. A small developer, even if they have a kick-ass technology, is much less likely to get a patent on it. There is a big hurdle (cost and administration) in front of them.
So the natural course is, the larger companies will get all kinds of legal rights to technologies, and smaller companies or individual developers won't be able to compete. I guess that's the big business plan for the 21st century; corporations are out of ideas and the last hope is to guarantee themselves some kind of royalty revenue stream, without innovating squat. And this is why, IMHO, the "west" will lose their innovative edge and pave their own road to obsolescence.
- Unix to enter the public domain
- Everything Microsoft did 20 years ago to enter the public domain
- Everything Microsoft published more than a year ago that it hasn't, today, got a patent on, to enter the public domain
- IBM to have more of its technologies in Microsoft products than vice-versa
The suggestion, incidentally, that this has to do with defeating the GPL, is patently absurd (patently, geddit? arf arf!) The GPL can be rewritten within this regime to force all use of patented technologies to be released with source and with all other patented technologies in the same product open too. Additionally, with patents requiring details of implementation, we'll see a lot more source code, documentation on proprietary formats, etc.If you're in the proprietary software business, a successful lawsuit here could not create a worse state of affairs.
Of course, as I see it, it's highly unlikely to be completely successful. You may, at most, see a strengthening of fair use in some quarters, as the courts attempt to reconsolile the constitutional right to due process with the draconian nature of modern copyright law. But there's little reason to believe that copyright law inherently violates due process.
You are not alone. This is not normal. None of this is normal.
Patents take time and money to get, something a lot of people don't have time or money to do.
And even more time and money to enforce. There are no government protections for patented items, its all done in civil court.
I do believe that there should be copyright, but I also think that it should autoexpire after some given period of time and fall into the public domain.
That way a great great great great great grandson/daughter does not have entitlement to copyright royalties for something that their great great great great great grandmother/father did.
Most slashdotters would agree that the current system could use some changes. But, transferring all software over to the already broken patent system is a worst case scenario.
Personally, I think the current copyright system has been manipulated into a terrible state by big businesses. But, a judge is not the guy to redesign the system. It needs to go before Congress to make fundamental changes (which is probably a bad idea right now, as our current government is so hopelessly corporatist that you might as well let Disney make the rules).
Copyright covers so many different types of media. Why is the protection the same for a newspaper article as for a software program, or a movie?
And, there are some things that companies may want to protect for centuries. But, that is just a huge burden on 99% of the other material that it makes no sense for. Give companies the ability to register copyrights, and extend them at a cost that increases as the term goes longer. Let them bear the cost burden of the system they benefit from.
Right now, in case nobody has noticed, the European Union is looking at the idea of software patents. If someone were to...
Yeah, yeah, it's spin-doctoring. They're not really saying the patents are bad, they're really saying that patents alone are bad. Spin is the stuff of modern politics, however, and industry has used it enough times against those it doesn't like.
To beat software patents in Europe and (hopefully, eventually) America, we simply show that there are no significant benefits or additional protections offered by patents, according to the software industry itself. It won't influence those set in their ways, but any skeptics who are just along for the ride might be swayed.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Maybe so, but patents are even worse. At least with copyright, there's one set of rules that apply to all cases. With patents, the boundaries are determined by the set of all claims in every patent that exists. That's millions of rules to check against each new line of code I write, with hundreds more being added every single day. What's worse, these claims are written by the very people who benefit from them, and they are often intentionally obfuscated by their authors.
IMHO, copyrights are actually a good match for software *source code*, since it looks and feels a lot like a work of literature. The same isn't so true for object code. Since it is a "weakly encrypted" mechanical transformation of the source, it doesn't provide the customer with any of the benefits of knowledge that copyrights on literature and music were originally intended to promote. However, patents are a particularly poor match for software because of the O(n^2) legal problem of needing to check millions of lines of code against millions of patent claims. (That's a job on the order of 10^12 operations for every large program out there!)
I believe that object code would be better be protected by a totally new IP concept that is tailored specifically for the unique properties of software. Object code would not be eligible for either copyright or patents as they exist today.
It might be something like a standardized EULA that properly balances the interests of the vendor and the customer. (IMO, one-sided vendor-written EULAs should also be disallowed unless they get an actual ink-and-paper signature on a valid contract prior to the sale). Instead of being based on the concept of physical copies like standard copyright, which doesn't map well to networks of computers, it would be based on the actual usage patterns of computer software. The rights of someone to compile some source code they have into object code, or to make copies of object code, would be dictated by this new concept, not by copyright.
I think that the new form of protection would ideally provide some weak protection against blatant ripoffs of look-and-feel and innovative new features, but it should explicitely allow for interoperability. Maybe published APIs and file formats should be required to get any IP protection at all. To combat monopoly-protecting market barriers, any protections under this new concept would also be subject to the stipulation that they can be licensed by anyone under reasonable-and-nondiscriminatory terms.
Of course, don't hold your breath wating for anything like this to happen in the real world.
1) The idea that software is not copyrightable but books/music/etc. are is not novel. In 1980, Bill Gates was arguing that software should be copyrightable, even though bytecode is not in a human-readable form (which was previously a requirement for an artistic work to get copyright), and the law was unclear as to whether bytecode would end up being copyrightable at all.
2) Software is the only thing I know of that can potentially be covered by patent, copyright, and trade secret law. To me, that's insane--and something needs to go.
3) My suggestion:
No more copyright or patent for software. Instead, have something different, which I'll call a "software patent". To obtain protection for a piece of bytecode, you must send the source code for this program to the Copyright Office. You then have several choices:
a) Allow the Copyright Office to release your source code immediately. You then have copyright-like protections on both the source code and bytecode for X number of years (say 10 or 20 years).
b) Do not release the source code immediately. You then get copyright-like protections on both the source code and bytecode for Y number of years (say 2 or 5 years). After your Y years are up, your copyright-like protections expire, your work enters the public domain, and your source code is released by the Copyright Office.
Ideas? Suggestions?
Dlugar
Computer Go: Writing Software to Play the Ancient Game of Go
People seem to assume that the point of the GPL is that the creators take some pleasure in "forcing" people to do things. That's not the point, the point is the GPL ensures that software (code) stays "free". If there's no mechanism to keep software "unfree", the GPL is worthless, yes, not because it's been emasculated, but because it's *no longer necessary*.
If you have just patents though, you might need some kind of "patent-GPL" patent licensing system, but of course we have to deal with patents *now* anyway.
Ironic given that the justice system's job is to act as a check for the legislative branch. Good job shirking their duty, though...
The suggestion, incidentally, that this has to do with defeating the GPL, is patently absurd (patently, geddit? arf arf!) The GPL can be rewritten within this regime to force all use of patented technologies to be released with source and with all other patented technologies in the same product open too. Additionally, with patents requiring details of implementation, we'll see a lot more source code, documentation on proprietary formats, etc.
The problem is that to gain copyright on your code, you have to doTo say the GPL could just be rewritten to work off patents leaves a big hole, in that the way the current GPL can be enforced is through the 'by default' granting of copyright on the code, and if someone violates the GPL then they violate the copyright. If copyright was withdrawn, then theres nothing protecting this code by default, so how would you punish someone for violating the GPL? Patents are too costly to apply for for everything on sourceforge, and indeed the majority of OSS code isnt patentable anyway.
For example, the Linux kernel. You cant patent it in its entirety. You would have to find something patentable within it, and then you loose all protections of this patent if the person decides to rip that part out. Its simply unenforcable.
1) No one would ever patent a program that they didn't think would recoup the cost of filing for the patent in a reasonably short amount of time. This would take IP protection from all small players.
2) Unless one came up with a patentably different way of doing something that others had already done, one would not be able to patent it. Indeed, if they weren't substantially different, they couldn't even distribute it, if someone had already patented the idea. Thus, once someone had patented email software, there'd be far, far less incentive for anyone else to make an email client. The same for web browsers. The same for RSS readers. The same for word processors. etc. Competition and choice would be severely eroded.
3) Even if software developers did manage to simultaneously think up great new features and work their ways around others' patents on similar software, interoperability would go out the window--a vendor would create software with a new feature, patent it, and nobody would be able to make software to interoperate with it. Goodbye to standards.
4) What about when one releases an upgrade version of their software--do they have to file for another patent, and pay another fee?
This is a pathetically stupid idea.
Convert RSS to HTML - integrate webfeeds into your website
Check out my sci-fi/humor trilogy at PatriotsBooks.
Speaking in a US-centric manner: And here is an even more important one. Assuming, for a moment, that a small player does manage to obtain a patent, the small player cannot afford to defend this patent in court. Or a copyright. A large company has the deep pockets required to tie up a small company long enough to bankrupt them in the pursuit of what should, on the face of it, be a clear and simple pursuit.
This is not because the patent system is broken (though it is), and it is not because copyrights are broken (though they are) and it is not because corporations are misbehaving (though they are) -- it is simply because the legal system in the US is broken. Money is the fulcrum upon which all these legal levers develop their power; and corporations always hold the longer end of the lever.
The reason for this, in turn, is because US law is broken. In the end, the finger has to point towards the legislature for (a) enacting incredibly stupid law and (b) not getting rid of law when it is bad, but instead enacting new (almost always worse) law that cannot be dealt with in court in a reasonable, timely and inexpensive manner. To put a fine point on it, if laws were well written, you wouldn't need lawyers.
The law says you can't do this. Did you do it? Yes? Guilty. Smack!
To pursue the leverage analogy, the fulcrum needs to be moved to the middle, where a shallow-pockets player has an equal amount of leverage to that which may be obtained by a deep-pockets player. Until, or unless, that is done, large players will have the decisive advantage. There is no way around it.
If, for instance, the fellow who is the subject of this article had any chance of success (he doesn't), every corporation that has a stake in intellectual property protection through copyright would be on him in a heartbeat, and that would be the end of him. Of course, since he has no chance whatsoever, they're ignoring him.
If he were to succeed for some random reason (the judge was a user of hallucinogens, for instance) then the corporations would simply buy congress, pass new law, end of problem. That's the way it works. You have money, you control your situation. You have "rights", they get adjusted by those with money so that the benefits accrue to them, not to you.
You want protection for software so you can sell it? Here is the key: Trade secret. That's the ticket. Innovate, implement, sell, provide outstanding customer service. Maintain absolute secrecy. Force competitors to re-invent. Be clever about it so that if your code is stolen, it will cause major technical problems. While selling, begin to innovate again. Lather, rinse, repeat. By the time your competitors have figured out your last innovation, you're selling a new one.
Copyrights and patents are for the big guys. Oh, a small guy can claim copyright, and they should simply because it is free, but it truly doesn't matter since they cannot defend it.
Trade secret. That is the secret. Of course, if you cannot continually innovate, then you don't get to play long-term. Is that a bad thing? I don't think so.
We now return you to your regular reaming by the system. Please assume the position.
I've fallen off your lawn, and I can't get up.
Eldred vs. Ashcroft was not an example of the Court failing to "legislate from the bench". It was an example of them shirking their duty to nullify an unconstitutional law. The DMCA is clearly unconstitutional, and they should have declared it so in this case.
Congress can pass all the unconstitutional laws it wants unfortunately. The duty of the Executive and Judicial branches is to veto these laws, refuse to enforce them, and declare them unconstitutional. With Bush in power, there's no chance of the Executive branch doing its job (PATRIOT Act). So the only hope we have for actually keeping our laws in line with the Constitution is the SCOTUS. With them shirking their duty, we're screwed.
The problem is not the copyrights. Copyrights don't do anything to control how you use software, they just provide a handle for the publisher to impose a license on you.
When you "buy" a program, you don't buy a copy that you can use under normal copyright terms, you buy a license to use the software.
If software was patented, they would come up with a similar scheme to impose similar licenses on you using patents instead of copyrights. It might even be easier for them to impose draconic restrictions for most users.
Reformatted from a text file on his site:
In fact, I get the distinct impression from a number of his sites that he's not so much of the opinion that software patents are bad per se, just that all these frivolous ones are getting in the way of the real moneymakers.
The Good Point from the parent remains though: copyrights are better for computer software, because patents forbid others from creating software for the same purpose as yours - even if the underlying code is different. It would, for example, make it possible for Lexmark to enjoin companies for making competing ink cartridges for their printers; which of course opens the door for price-fixing and a non-competitive market in printer cartridges (not to mention a market where only printer manufacturers can make cartridges, not third parties).
It does autoexpire. And the supreme court has said that almost 100 years isn't too long, and that retroactively extending it is fine too.
But, in theory, it does still "autoexpire".
Those who fail to understand communication protocols, are doomed to repeat them over port 80.
Can you patent a song? Let people make lots of copies of your writings? NO: Remove patents from software, and only keep copy right protections. I don't want you to copy my programs and sell them as your own. I don't think 'ONE CLICK' is a novel anything that should be protected for a second. He wants to protect the ideas, but not the product of those ideas. Yeeaaaaahhhh...
Object code is not human readable, therefore it is better thought of as a device than as a form of expression, therefore, prima facie, it should not be copyrightable (IMHO, IANAL, SMC, HAND).
Mechanical translations of a copyrighted work are copyrightable and should be. Suppose that I take any copyrighted digitized work and encrypt it. It is a mechanical translation that is no longer meaningful to humans and therefore loses its copyright. Now I unencrypt it and I have a perfect uncopyrighted copy of what I started with and I can do anything I want with it. Brilliant.
Regardless of hwo this might play out, and its implications, I can't see this being retroactive to software that already exists...
Quite the contrary.
If software copyrights are struck down by a court as unconstitutional, the effect is as if they had never existed. If the constitution doesn't authorize them NOW, it didn't authorize them THEN either. (Absent a relevant amendment, of course.)
The prohibition is on PASSING retroactive LAWS (for instance, criminalizing something you did while it was legal and then busting you for it).
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Problem is, people cry foul about so-called "activist judges" or judges "legislating from the bench" quite often when they disagree with certain decisions handed down by judges. Its not necessarily wrong to disagree with a judge's reasons for handing down a decision, but to say a judge is making law because you don't agree with the judge's interpretation of the law is a bit presumptuous. There is no such thing as a single correct interpretation of the law or our Constitution(at the very least, even if there were, we, as a people, do not agree on what that is). That's why we have the judicial branch, to judge how the law applies and what it means.