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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."
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.
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?
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.
... 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.
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