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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."
This was to be expected. TPTB must have control. You as consumers are only here to be exploited in the minds of the TPTB.
You are being MICROattacked, from various angles, in a SOFT manner.
The Supreme Court of the United States indicated in its Eldred v. Ashcroft opinion that the Court isn't in the mood to to legislate from the bench, that it's Congress's job to sort out the scope of copyright law so long as there's a semblance of a right of fair use preserved to the people.
This might actually help the GPL (and the patient system) by allowing for "prior art". Especially if they did away with the lifetime copyrights and start actually release things into the public domain.
Seems to me this would be a "good thing" (TM)
-Wes
I think he brings up some good points but I think the bloat and draconian nature of the copyright system would simply move to the patent system. The problems that exist and persist in the software copyright arena are ones that give the advantage to those who can affect how patent law and copyright language/law will be.
I don't think he doesn't have a point, I think he's done a wonderful job of exploring moving the system to the patent side but I believe all bottlenecks and corruption will be moved from one office to another.
-Teiresias
As the poster above points out, the constitution clearly gives congress huge leeway in deciding how to "protect writings and discoveries".
So any court would probably say "this is not our bailiwick". He should lobby congress if he wants this kind of change.
Actually, he should go somewhere far away from the united states, I don't like him. His idea is stupid.
It's stupid because with copyrights, I know that I won't infringe anything as long as I write it myself. With patents, I have no idea if anything infringes or not. It's "action at a distance". So I'll probably just not write anything. (But Microsoft won't have any problem since they've got a lot of money). It just creates a barrier to entry. All those "dormant" patents (like the patent on Bayesian spam filtering, or overseas e-commerce, or wifi registration, lets say) well suddenly come to life.
No sir, I don't like it.
>patents are difficult to obtain?
Compared to copyright, which is an individual *right*, and automatically conferred on any authored work, patents are entirely more difficult to obtain.
The fatal flaw in the case of the article, of course, is he is seeking to abridge an individual right reserved to the people. In order to succeed, he would have to pursue litigation against each and every one of them.
Any blanket weakening of copyright is going to have collateral damage across several industries. Any legal language that finds "the GPL" invalid, which is often repeated whenever this topic comes up, would almost certainly be the precedent that would destroy the business model of the whole entertainment industry.
An Act of Congress could change this.
Good luck with that.
-fb Everything not expressly forbidden is now mandatory.
In the EU we're trying to throw out patent laws for software and keep copyright as the method of protection for software IP.
As mentioned, patents are more difficult and expensive to obtain than copyrights. This means that the little guy who cannot afford a patent is not going to be allowed any protection at all!
It is time for software developers to donate potential patents to the FSF. If copyright is no longer a defense against one's code being ripped off by commersial competitors. Microsoft must be secretly wishing that this guy wins his case.
Perhaps, also the Gallery of CSS Descramblers could come is useful. Greg Aharonian's filing is taramount to saying that code is not speech, after all.
Wikileaks, no DNS
It's a court case, not proposed legislation. If the judicial system rules that copyright doesn't apply to software, I'm fairly certain (although IANAL) it would mean it doesn't apply to any software, not that new software can't be copyrighted.
Don't blame me; I'm never given mod points.
If copyright extensions can be retroactive, then copyright reductions can be retroactive, also.
Hmmmm... good thing you qualified your post with IANAL....
.... infringes on my patent...." scenario just like all other software sources other than the open one.
Actually, to answer your questions. Yes, you will have to pay them if they (fairly) patented the algorithm and have demanded payment (as has always been the case).
Also, Open source has always been vulnerable to the "Hey the open source
As for comming up with an alternate algorithm to solve a problem for which there already is a patented algorithm, well, this happens all the time, and is not worthy of discussion (and no, the "big company" could not "take you out", at least not in theory.... not for using an algorithm they did not patent)
About the only thing interesting about your post is your Sig, and even that is immature.
Hmmm....
gus
.. if only.
Under that theory, the GPL would keep its teeth but (e.g.) the M$ EULA, which also relies on copyright law, would not. Of course, that won't happen in a million billion jillion years...
Im not going to comment on the liklyhood that this will or will not be succsessful.
If we have to choose one protection for software it would have to be copyright.
Patents basically kill any type of compentition. You could charge whatever you wanted and sue the hell out of anyone who tries to write a competeing product. It basically means that lots of profit for the patent holder and no competition driven innovation or service.
Copyright on the other hand protects a companies specific implementation of an idea. No one else can use that implementation but it doesnt prevent someone from making a compediting product.
If linux didnt exist, Microsoft probably wouldnt be trying to create new innovations for longhorn such as avalon.
In America we are imprisoned by our fear of them.
From the article:
Aharonian argues in his complaint that software copyright laws violate the right to due process enshrined in the U.S. Constitution because they do not provide clear boundaries for appropriate use. That means industry players and courts do not have a clear idea of the rules.
"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.
Actually, he has it right. Copyrights, in regard to software, aren't working. Instead of stumping to fix it, he presents the logical (yet absurd) argument of throwing it away completely. Perhaps he's just trying to bring attention to the issue by being extreme?
I see one problem with this: published compositions are automatically protected by copyright, but obtaining a patent requires going through an application process, which costs money, and risks rejection. If I write a piece of software, I can--without cost, and without risk of it being overturned--license it under the GPL. Not so with patents. Each author who would wish to obtain a patent on his work would have to incur that cost and risk every time. (Not to mention the issue of whether software should be patentable at all.)
How can you claim that patents are not harder to get than copyright? Your post, mine too, are both protected by copyright. Neither of us did ANYTHING to accomplish that. TO get a patent you have to hire a patent lawyer to help write it, pay the filing fee, and it frequently takes multiple submissions to get accepted (if it gets accepted). Then about 3 years later, poof you have a patent!
On the other hand, if I'll infringe your copyright right now, in order to protect your rights you would have to commence a quite costly legal hassle. Should I be a vicious corporation that could countersue you to death - you'd stand no chance in that battle. With patents, it's the other way round. They are indeed harder to get than copyright, but they are incredibly easy to defend (once acquired). And there are known cases when a small company succesfully defended its patent against a Microsoft-sized giant, even against Microsoft itself. Actually, the ease of getting patents is the main danger in software patents - you never know who patented what when you start to write your own program.
Dracionian EULAs are based in contract law, not in copyright.
So if I make lots of "backup" copies of Windows CDs before I agree to the EULA I'm fine then?
http://blog.nexusuk.org
... even if software patents aren't.
I've written about this idea in various places, and this seems like another good opportunity: Copyright protection for software, as it works now, is seriously messed up.
Copyright has, until recently, been well-understood to be a balance between the interests of the author and the interests of society, with the ultimate goal to enrich society. Specifically, it's a solution to the problem that, say, a book author has: if he publishes his material, it can be copied. He can maintain control of his work only by keeping it secret. So, society agrees to grant him a monopoly over his work, but with some limitations. Key among those limitations is that his ideas and techniques are NOT, repeat, NOT protected. That way society can benefit from other authors picking up those ideas and techniques and expanding upon them.
This is different from patents in that patents provide stronger protections but for a more limited time period, specifically, patents do provide a measure of protection for ideas. Also, patents can only be obtained through a process of public disclosure, so that others can pick up the ideas and perhaps build upon them.
Both mechanisms are intended to *promote* progress through the promulgation of ideas. Now, traditional copyright law has not had any publishing requirement because it hasn't been necessary. You can obscure how a machine works, but you can't hide the words you use in a book, or the notes you use in a song. Copyright without publication didn't make any sense, so no one worried about it.
Software changed that. Now, it is perfectly possible to both publish your work *and* to keep it a secret at the same time. By publishing an opaque binary while keeping the source secret, you obtain both copyright protection and trade secret protection on the same work -- and perhaps patent protection as well. This is an abuse of the system, which was never intended to provide such double or triple coverage. This abuse destroys the careful balance that was established between society and creators, at the expense of the society that is then tasked with enforcing the imbalance!
There are numerous ways in which current IP law is out of synch with the social contract that purportedly underlies it, but in my opinion this is one of the worst.
In my opinion, the way to restore the balance is to extend copyright protection only to software whose source code is published along with the binary. This does not mean that it has to be Free Software; the owner can still reserve all rights to reproduce it or prepare derivative works, but anyone who bought a copy would be able to read it and learn from it.
Companies who had important new techniques that they did not want to share with the world could refuse to publish source and rely instead on trade secret and contract law to protect their work. But the law should not provide copyright protection for that work, nor could it provide patent protection, because patents must published.
I'm actually not wholly averse to software patents, either, but such patents should be (a) short and (b) held to a very high standard for approval or review.
We need to restore the balance to IP law. It's so far out of whack right now that an increasing number of people simply consider it all to be bad, and that is a terrible outcome. IP is important, and will be increasingly important. For that reason, we need sane laws that implement the social contract mentioned in the US Constitution and provide proper balance between the competing interests.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
The biggest headache I have with all this legal crap is that software companies want both patents and copyrights to apply to the software product. Copyright applies to non-tangible items like the words inside a book, a musical score, and ... software. Patents apply to tangible items like engines, razor blades, sewing machine needles ... note the lack of "intellectual property."
...
I don't see how software can receive protection under both programs. I believe that's part of the problem. There's a fundamental arguement that hasn't been settled - the lawmakers need to declare that software is either IP or tangible-goods. Once that's done, you use either copyright or patent, respectively. You don't get both.
If software is IP, which is the classification I believe it should have, then you don't get patent protection. None. Can you place your "patented algorithm" in my hand? No no no, that's a piece of paper with some scribbling on it. I want just the algorithm. You can't do that? Copyright
The government shouldn't be forced to enforce open source. That's not what inspired this bit of hypothetical legislation (which I know wouldn't stand a snowball's chance in hell in Congress, thank you very much Mr. Safety Cap).
I started with the idea of no copyright, and a consitutional mandate of "to promote the Progress of Science and useful Arts." So what would promote the progress of software?
Well, like music or books or other artistic ventures, we want people to have an incentive to create lots of useful works. Unlike music or books or other similar things, software has "source code" which is tremendously useful for others who are doing similar tasks to look at and at times reuse. So it would make sense, given this idea of "to promote the Progress of Science and useful Arts," to give an added incentive to those who release their source code as well.
I think that idea (giving more of an incentive to those who release source code) is certainly well within the constitutional framework of copyright, and well within the realm of government legislation.
Dlugar
Computer Go: Writing Software to Play the Ancient Game of Go
Here's my opinion on this. If you come up with a new and innovative way to write a novel, you won't be getting licencing fees from people who move into the same genre, nor should you. Why should it be any different for an algorithm? If you want to make money from your "discovery", build a library containing your algorithm, and sell copies of it to people.
Software is nothing more than a set of (complex) written instructions. If you had appropriate hardware you could load all your applications from a book. I think copyright law is exactly the right law to apply to software and that patent law is exactly the wrong law to apply. In the case of software, copyright encourages production, patents stifle it. Any self respecting capitalist should oppose patents. Course it's all corporatists these days...