Lawsuit Filed Against Software Copyright

MS Welcomes... by SirCyn · 2004-12-14 05:27 · Score: 2, Funny

... their newest consultant.

Re:MS Welcomes... by squiggleslash · 2004-12-14 05:43 · Score: 5, Insightful
Somehow, I doubt Microsoft wants:
- 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.
Re:MS Welcomes... by pegr · 2004-12-14 06:24 · Score: 3, Interesting

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?
Re:MS Welcomes... by Lesson+No.+25 · 2004-12-14 06:29 · Score: 2, Interesting

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.

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.)
Re:MS Welcomes... by Richard_at_work · 2004-12-14 06:41 · Score: 3, Insightful

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 do ... nothing. To gain patents on your code, you have to spend money. This is why very few opensource coders have applied for patents, the cost barrier.

To 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.
Re:MS Welcomes... by dgatwood · 2004-12-14 06:43 · Score: 2, Insightful

What I don't get is that the person's web page is all about stopping bad sotware patents, and this would seem to promote bad software patents. I just don't quite get it....

--
Check out my sci-fi/humor trilogy at PatriotsBooks.

Retroactive? by deft · 2004-12-14 05:27 · Score: 4, Insightful

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.

Re:Retroactive? by geoffspear · 2004-12-14 05:44 · Score: 2, Interesting

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.

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Don't blame me; I'm never given mod points.
Re:Retroactive? by Ayaress · 2004-12-14 05:49 · Score: 4, Insightful

Constitutional protection from post ex facto laws doesn't help here either (and neither does my knowledge of Latin, since I think I have the wrong legal term there). The companies that would be harmed by this don't have the (financially viable) option to stop and comply with the new rules. Their defense would have to be prior art in the case of patents filed after such a ruling (which I doubt will happen, but hypotheticals here), but then that still leavs us with these already-annoying pattent sitters who patented everything under the sun in the early 90's.

Patents are harder to obtain, maybe, but they're not that hard to get, and as we've seen all to painfully they can be so vague as to apply to a huge range of very different applications.

The Open Source defense would have to either be prior art, or else challenge the patents themselves. A good way, I would think, would be anti-trust. A company that patents some very fundamental and universal aspect of operating systems would effectively have a monopoly on operating systems. Those it didn't own itself it could force to pay licensing fees or royalties.

The scariest thing is, in my opintion, Microsoft may NOT be the one to do it. It wouldn't suprise me in the least if some guy in Alabama comes out of the woodwork with an old patent and tries to force not just open source operating systems, but even Apple and Microsoft to pay him those royalties. It's one thing that people would like to see Microsoft get hurt at their own game, but it's quite another if everybody else gets caught in the fallout, which probably would happen in a patent case. The patent holder would either attack open source OS's first and hope for an easy win, or go right for Microsoft and then use that judgement (not to mention money) against everybody else, if he gets it.

Now, back to open source, if it should successfully defend itself against patents, or even obtain patents of its own, couldn't licenses like the GPL be rewritten to apply the same freedoms to the patented software as it does with existing copyrights? After all, a patent grants the holder certain rights, just like a copyright. It grants different rights, but the holder can still sell, transfer, or even waive those rights. IANAL, but I'm pretty sure you can.
Re:Retroactive? by Slothy · 2004-12-14 06:11 · Score: 3, Informative

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!

Don't exaggerate by claiming patents are as easy to get as copyright. It's entirely false.

Now as someone who works in the game industry, how exactly would patents protect games? If anything, strong patent enforcement would shut down the game industry given the patents owned by the graphics companies, not help it.
Re:Retroactive? by MathFox · 2004-12-14 06:14 · Score: 3, Informative

If you read the article: Greg Aharonian would like to get permission to store (legally obtained) code in a database to use it in checks for copyright infringement. I can see him getting that permission from the courts, even if the copyright owners don't like it.
My summary: A total removal of copyright protection is not asked (and will NEVER be granted by the courts; that's something for Congres.) Best case is that the courts declare some license conditions and DMCA clauses "non-binding", they put bounds on the rights software owners claim to have. (All the data on your computer is ours...) Most likely result: effectively nothing changes.

--
extern warranty;
main()
{
(void)warranty;
}
Re:Retroactive? by Martin+Blank · 2004-12-14 06:15 · Score: 2, Informative

You were close. It's "ex post facto," and it deals with laws making things criminal after the fact, something expressly forbidden in the Constitution. For example, if someone violated a copyright while it was still covered purely under civil laws, and then later a law came into effect making that copyright infringement a criminal violation, as long as the person were not continuing to commit the violation after the act becomes criminal, he can only be pursued under the original civil law, and cannot be prosecuted criminally.

When laws are blocked by the courts from being enforced, this has the effect of preventing further actions to uphold them, but does not necessarily relieve those who have been convicted of violating them in the past. Except for temporary stays during considerations of constitutionality, this is a fairly rare occurence.

When laws are overturned by the courts, then all those who have been affected by them are relieved of whatever sentences have been applied. The clearest example of this was the overturning of the death penalty by the Supreme Court in 1972. At that time, all death sentences were commuted to life in prison because the death penalty, as it had been enforced until then, was found to be unconstitutional. This is also a good example of the ex post facto concept, as those who had their sentences commuted could not be resentenced under the new death penalty laws, because their crimes were committed before the new penalty laws went into effect.

--
You can never go home again... but I guess you can shop there.
Re:Retroactive? by Trurl's+Machine · 2004-12-14 06:31 · Score: 3, Interesting

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.

Here we go... by SpaceLifeForm · 2004-12-14 05:28 · Score: 2, Interesting

This was to be expected. TPTB must have control. You as consumers are only here to be exploited in the minds of the TPTB.

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You are being MICROattacked, from various angles, in a SOFT manner.

It won't happen by tepples · 2004-12-14 05:28 · Score: 5, Interesting

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.

Re:It won't happen by Zak3056 · 2004-12-14 05:37 · Score: 2, Informative

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.

I wouldn't expect Eldren v. Ashcroft to even play into this at all, because it doesn't involv eany of the issues raised therein. The courts don't have the power to decide what methods are or should be used to protect "intellectual property." That's clearly up to congress, and I would expect any reasonable judge to toss this on that alone.

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What part of "shall not be infringed" is so hard to understand?
Re:It won't happen by Abcd1234 · 2004-12-14 06:18 · Score: 2, Insightful

Ironic given that the justice system's job is to act as a check for the legislative branch. Good job shirking their duty, though...
Re:It won't happen by Grishnakh · 2004-12-14 07:08 · Score: 2, Insightful

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.
Re:It won't happen by zephyr1256 · 2004-12-14 16:05 · Score: 2, Insightful

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.
Re:It won't happen by tepples · 2004-12-14 17:45 · Score: 2, Interesting

The DMCA is clearly unconstitutional, and they should have declared it so in this case.

In a way, they did. In the Eldred opinion, which upheld a second successive copyright term extension, the Supreme Court found the right of fair use necessary to make copyright compatible with the First Amendment. Many analysts take this as a subtle hint that the Supreme Court believes that the anti-circumvention provisions of Digital Millennium Copyright Act, as interpreted in Universal v. Reimerdes, might violate the First Amendment, as 17 USC 1201 preserves no defense of fair use when a work is published only in an access-controlled format.

Hurt the GPL? by kai5263499 · 2004-12-14 05:29 · Score: 2, Interesting

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)

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-Wes

Re:Hurt the GPL? by Sc00ter · 2004-12-14 05:31 · Score: 5, Insightful

How? the way the GPL works is that it depends on copyright. Without copyright the GPL is worthless. People could "take" you code and do anything with it, not have to contribute back, or even put the GPL back on it.
Patents take time and money to get, something a lot of people don't have time or money to do.

--
Free Mac Mini
Re:Hurt the GPL? by SnapShot · 2004-12-14 05:39 · Score: 4, Insightful

The article is detail light, but one of the examples that they used had nothing to do with source code copyright. (It didn't seem to have anything to do with software either, but that's beside the point.)

In one well-known case, Lexmark International invoked copyright laws to prevent a competitor from making computer circuits that allow cheaper inkjet cartridges to work on its printers.

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.
Re:Hurt the GPL? by hackstraw · 2004-12-14 05:53 · Score: 2, Insightful

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.
Re:Hurt the GPL? by Relic+of+the+Future · 2004-12-14 07:22 · Score: 2, Insightful

???
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.

Sueing who? by damicatz · 2004-12-14 05:30 · Score: 4, Insightful

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.

Re:Sueing who? by danheskett · 2004-12-14 06:06 · Score: 2, Informative

Dracionian EULAs are based in contract law, not in copyright.

Most EULAs restrict beyond what copyright calls for. This is only enforceable - if at all - on the merits of the EULA as a binding contract.
Re:Sueing who? by FireFury03 · 2004-12-14 07:31 · Score: 2, Interesting

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
Re:Sueing who? by DavidTC · 2004-12-15 09:27 · Score: 2, Insightful

The judge in your district in on crack, if that's what he actually said, which I doubt. (And, um, something like 80% of high school students are legally underaged and can't bind anyone to contracts, even themselves.)
Contract law simply doesn't work like that. You are correct that employees can bind businesses to contract as long as the other party had a reasonable assumption that they were doing business with someone able to sign contracts, and it's possible this extends to EULA, although there is a concept of a minimal check...if I walk up to a random customer in Walmart and write a contract with them, I'm not getting anywhere in court.
EULAs don't even check that the button pusher is a human being, much less appears to be able to sign a contract on behalf of the company. But they, possibly, might work in court in a hypothetically 'If there had been a check, this person would have passed' sense. OTOH, as the point of that is to protect the person that's not the business from the business saying 'Oh, he didn't have authority to sign that purchase order, take back your eight million custom ball bearings', it doesn't seem useful here, where the software company loses nothing if the person didn't agree to the EULA. (Because EULAs aren't actually valid contracts in the first place, as they don't grant any rights to the person agreeing to them.)
But students have never had the presumed power to bind schools to contracts. And, likewise, some random person who clicks 'okay' on my computer doesn't have the authority to bind me to anything, anymore than a random person who's been allowed on my property has the authority to have my house bulldozed. Employees binding businesses only works for businesses, period.
There have been a lot of incredibly fucking stupid judges out there who think EULAs are valid, and 'you've agreed to any EULA on your computer' is taing that stupidity to a new height. I just want to write some a Java program that gives, in the EULA, all the assets of the person who agrees to me, in returns for ten minutes of use, and then have someone go Kinkos, download it, and click okay. Damn, now I own FedEx.

--
If corporations are people, aren't stockholders guilty of slavery?

This would never fly by tarp · 2004-12-14 05:30 · Score: 5, Insightful

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.

Re:This would never fly by khallow · 2004-12-14 06:33 · Score: 2, Insightful

No. Lobbies can steer appointment of new judges. So they have some influence here.

The More Things Change..... by teiresias · 2004-12-14 05:30 · Score: 2, Interesting

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.

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-Teiresias

Who comes up with these ideas by Henry+V+.009 · 2004-12-14 05:30 · Score: 5, Insightful

Doing the exact opposite would be sane. This isn't.

Re:Who comes up with these ideas by daniil · 2004-12-14 06:00 · Score: 3, Funny

I do.

See, I work in this big time law firm. We are all such great men (we're all white men in our mid-40's) that we don't even have to work anymore to make immense amounts of cash. We have all these junior employees doing all the hard work for us, while we only stand up in the court to make opening and closing speeches (and we're mighty good at making these).

Every once in a while, however, this kind of work gets boring and we need new challenges to keep us motivated. Sure, we could all retire today, but we love our work (every good lawyer loves his work) so much that we want to keep on going and evolving until we die. See, I had this idea one day that if a lawyer keeps practicing his skills, he'll enter some sort of godhood one day. Someday I'll turn this idea into a minor religion and make a fortune on it, but I'm not going into details right now.

Now, what I'm getting at is that every once in a while, we will get bored of our tedious everyday life. When that happens, one of us will come out with a crazy idea (we're always brimming with such ideas, but we'll usually keep them secret)-- like suing Linux, or abolishing software copyright protection. At first, we'll all laugh at how ridiculous that idea is, but after we've stopped laughing, we'll try and get it accomplished. Then it's simply a matter of finding some idiots with too much money at their hands, and we're all set. Let the games begin!

Posting this anonymously, as I fear that my partners or other such groups might want to get back at me for this revelation.

--
Man is a slave because freedom is difficult, whereas slavery is easy.

How would patents apply by vivin · 2004-12-14 05:32 · Score: 4, Insightful

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

Re:How would patents apply by gus+goose · 2004-12-14 05:52 · Score: 2, Interesting

Hmmmm... good thing you qualified your post with IANAL....

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 .... infringes on my patent...." scenario just like all other software sources other than the open one.

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

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.. if only.

On patents by wtrmute · 2004-12-14 05:33 · Score: 2, Informative

... patents, which provide more comprehensive protection but are difficult to obtain...

Excuse me? Is it the author or the editor who's claiming that patents are difficult to obtain? Haven't we been seeing patents being awarded left and right for the most mundane industry processes? Difficult to obtain, indeed.

Re:On patents by Scutter · 2004-12-14 05:37 · Score: 3, Informative

Difficult to obtain, indeed.

In comparison to a copyright, yes. Copyrights are automatic (more or less). Registered copyrights just require a fee and some documentation. Patents require a review process (ok, a *bad* review process, but still harder to get than a copyright).

--

"Tell me doctor, with all of your defenses, are there any provisions for an attack by killer bees?"
Re:On patents by fishbowl · 2004-12-14 05:38 · Score: 2, Interesting

>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.

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-fb Everything not expressly forbidden is now mandatory.
Re:On patents by Kakurenbo+Shogun · 2004-12-14 06:43 · Score: 2, Insightful

Haven't we been seeing patents being awarded left and right for the most mundane industry processes? Difficult to obtain, indeed.
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.

--
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Interesting story by Anonymous Coward · 2004-12-14 05:34 · Score: 2, Insightful

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.

It will never happen. by theparanoidcynic · 2004-12-14 05:35 · Score: 2, Insightful

Think about it: Copyright goes away, pirated software becomes legal.

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Only in a Slashdot fantasy can a Slackware install turn into several hours of sex . . . . .

will never happen by Anonymous Coward · 2004-12-14 05:38 · Score: 2, Interesting

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.

I'm not so sure about that by TiggertheMad · 2004-12-14 05:39 · Score: 3, Insightful

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!

Re:I'm not so sure about that by FireFury03 · 2004-12-14 07:01 · Score: 3, Insightful

No, this would not make copying Microsoft software legal, because most Microsoft software is covered by patents

I'm not convinced. You can't patent "a graphical user interface which presents applications in their own 'window'" because *everyone* does those (and even if they didn't, MS doesn't have prior art). So in theory, if you binned copyright laws then you could steal MS's code for that since it's not patentable.

The problem is that requiring the use of patents instead of copyrights breeds a monopolistic environment: Say I write an image viewer. The only way I could protect my code without copyrights would be to patent it. Lets assume that there isn't any prior art and I can patent my image viewer - suddenly I have the monopoly on image viewers because it is illegal for anyone else to write an image viewer even if it's coded completely independently from scratch because they would be infringing my patent.

Now, I own a company with the monopoly on image viewers and anyone who needs one has to buy it off me... what motivation do I have to improve the product? I mean, everyone who needs an image viewer already pays me lots of money for it so what do I get out of expending the time and money to improve it? It's not like there's any competition who might be doing a better job than me and put me out of business.

I can also charge whatever I want because there's no competition to bring down the price.

This, of course, affects opensource developers just as much: you can't develop an opensource competetor to a closed product and if your project is not patentable then you can't protect it at all - some big company can come along and steal your code with none of the inherent GPL style protections.

This is a very bad idea - patents are for *ideas*, copyrights are for the actual code.

--
http://blog.nexusuk.org

Opposite of what's happening in the EU by gilesjuk · 2004-12-14 05:40 · Score: 2, Interesting

In the EU we're trying to throw out patent laws for software and keep copyright as the method of protection for software IP.

I agree by CrazyJim1 · 2004-12-14 05:42 · Score: 5, Insightful

Copywrights protect code you've written. Patents prevent everyone from writing code.

--
God spoke to me.

Goodbye, Little Guy by VernonNemitz · 2004-12-14 05:43 · Score: 2, Interesting

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!

Re:Difficult to obtain? by bigberk · 2004-12-14 05:43 · Score: 3, Insightful

Since when have patents been difficult to obtain?

Ah, and here is an important point! Patents are very easy to obtain for large companies. Tech companies flood the USPTO with patent filings; these cost a few thousand dollars each, plus all consultant work. It is easy for a large company, with all the expertise in the process and cash to pay those upfront costs, to acquire tons of patents. It is significantly harder for a small guy.

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.

The time is ripe for GPL version 3 by Morosoph · 2004-12-14 05:43 · Score: 2, Interesting

http://www.affero.org/oagpl.html

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

Change is needed, but not this change. by tji · 2004-12-14 05:54 · Score: 2, Insightful

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.

Copyprivilege law and human rights by tepples · 2004-12-14 05:55 · Score: 2, Informative

However, no one is associating copyright laws with human rights.

Tell that to Dr. Lessig.

Source code is expressive. Object code is not. by Dr.+Zowie · 2004-12-14 05:55 · Score: 2, Interesting

Actually, splitting the hair just a tiny bit finer would preserve the GPL while gutting commercial software licenses. 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). Source code is human readable, therefore it is a better fit to the copyright code's intent of protecting expression.

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...

Copyright over Patents by Datasage · 2004-12-14 05:56 · Score: 4, Interesting

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.

This should be fun by jd · 2004-12-14 06:06 · Score: 3, Insightful

Every company on Earth is going to be putting forward arguments for why software copyright is the best way to protect them from software pirates.

Right now, in case nobody has noticed, the European Union is looking at the idea of software patents. If someone were to... ...point out to them that industry itself has declared that copyright is really all they need, that might seriously undermine the whole software patent movement in Europe. This is perfect timing, for this, as we can use industry's own arguments for why patents are a Bad Idea against them.

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)

Backwards by Waffle+Iron · 2004-12-14 06:07 · Score: 3, Insightful

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.

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.

Re:Backwards by Teancum · 2004-12-14 07:25 · Score: 2, Insightful

I concurr that this whole approach is totally backward from what should be the case. For copyright purposes, you can use automated tools to determine just how "close" one piece of software can be compared to another piece of software, and even put in a hard quantitized number just how similar one piece of software is to another one.

Also, when you prove copyright violations, particularly with source code but it can also be done with compiled binaries as well, you get the watchmaker principle where it seems incredibly unlikely that two pieces of software, even written to the same spec like two programs written for a computer science class as a homework assignment, will be identical in how they are put together. There are so many ways to even accomplish the same task that you can demonstrate uniqueness even if the output is totaly identical. Or if code theft has occured even partically you can demonstrate clearly abuse has happened when even identical variable names are used. Small sections and common variable names (i.e. temp, index, foo, bar, etc.) might still be identical but not large sections of software.

For patent issues, on the other hand, trying to come up with the fact that the idea is novel, unique, and not covered under a previous patent that is still in force can be a huge nightmare. I have seen examples of two seperate patents that seem to cover the very same idea, particularly with software patents. And even if you dilligently search the software patent files as a programmer to make sure you software doesn't infringe on patents (generally a bad thing to do as well...), that one patent that you missed might just be the one that trips you up.

Software patents are a horrible idea, and IMHO they should be eliminated altogether. I've said this before and I'll say this again, I can't think of a single reason why I would ever apply for a software patent. The only real reason I can see is to have a cool plaque on the wall with my name on it and to be able to (hopefully) stop some idiot company from suing me for patent infringement, with my patent hopfully being able to be used to ignite the WWIII software patent meltdown. It is not to "protect" the inventor, but as a mussle tool to offer legal protection against legal idiots. And if the software patents didn't exist, there would be no need for that kind of protection.

I'm not even sure if patents are a good idea for mechanical contraptions, and I've heard plenty of mechanical engineers gripe about the abuses of the patent system, but at least mechanical gizmos are what the "founding fathers" of the USA intended the patent system to be used for. While constitutional (it is explictly mentioned in the U.S. Constitution for patents to exist), I don't think the U.S. economy would be hurt at all if patents were simply outlawed in the USA altogether. Even in the case of a clear-cut garage tinkerer coming up with a cool idea and getting a patent on that idea (like the classic weed-eater to help trim small plants) has to spend an insane amount of money to enforce the patent, with very mixed results in the court system for having the patent validated, much less recovering damages.

Besides, there are very few if any major companies that would really be interested in buying a patented invention, with most "inventor" markets simply being a really ugly scam that I rank right up with the Nigerian 419 scams. Patent attorneys will take far more money from you than you will ever get back from an invention unless you are already in the business of making the kind of product you have invented. Even then, the patent (for a mechanical device) is just part of the protection racket like I mentioned with software patents earlier. Not to be used unless sued by another manufacturer and then hopefully you have a patent that covers something they are doing.

One advantage of patents by iamacat · 2004-12-14 06:12 · Score: 2, Informative

Is that they have to be published, compulsory licencing and challenge in court is an option and educational use is free. Instead of an innovation being locked up inside a company, other people can expand on it and even sell their work back to the original inventor. This could discourage one-click style patents because then the filer can not then argue in court that single-tap on a touch screen is not separately patentable.

Sure big companies (and small "IP" companies) will abuse patents, but they do that already, along with abusing copyrights and contracts (shrink-wrap). The only way for common people to live in a sane world is to constantly push back.

It's a brilliant idea by dapic · 2004-12-14 06:12 · Score: 2, Informative

If you guys bothered to look at this guys website, which is named http://www.bustpatents.com/, you'd see that he is really against software patents.

I think what he is trying to do here, is perform a publicity stunt to show that patent laws (in its current messed-up form) actually could COVER copyright laws since copyright laws says others can't distribute your (non-free) software, while patent law says they can't even distribute software that DOES THE SAME THING as your (patented) software.

Re:It's a brilliant idea by alanQuatermain · 2004-12-14 07:20 · Score: 2, Insightful
...except for the fact that he makes his money by assisting folks in obtaining IP patents, namely by offering to do prior art searches.

Reformatted from a text file on his site:
Patent Prosecution
- US/PCT patents prior art search $500
- Literature prior art search $800
- Prior patent and literature search $1000
- Prior patent and literature search (business methods) $1500
Patent Litigation
- Infringement defense/validity search $4000+
- Infringement defense/validity search (business methods) $4500+
- (surcharge for non-US clients) $100
...it seems that he's not against software patents, just against their quality. From all that I can find, I can't see anything which suggests that the lawsuit is anything other than what it claims to be: namely, an attempt to convince Congress to abandon software copyright in favour of software patents. After all, how could he possibly benefit from the inverse? He makes his money from software patents...

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).

Copyright Reform by Dlugar · 2004-12-14 06:13 · Score: 2, Insightful

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

Re:Copyright Reform by Safety+Cap · 2004-12-14 06:30 · Score: 4, Funny

Your post advocates a

( ) technical (x) legislative ( ) market-based ( ) vigilante

approach to fighting software copyright/patent abuses. Your idea will not work. Here is why it won't work. (One or more of the following may apply to your particular idea, and it may have other flaws which used to vary from state to state before a bad federal law was passed.)

( ) Total chaos determining what code is protected under which law
( ) Legitimate uses would be affected
( ) No one will be able to find the guy or collect the money
(x) It is defenseless against Hong Kong dupe factories
( ) It will stop abuses for two weeks and then we'll be stuck with it
( ) Users of software will not put up with it
( ) Microsoft will not put up with it
( ) The police will not put up with it
(x) Requires too much cooperation from software companies
(x) Requires immediate total cooperation from everybody at once
(x) Many software developers cannot afford to lose business or alienate potential clients
( ) Code thieves don't care about patents or copyrights
( ) Anyone could anonymously destroy anyone else's career or business

Specifically, your plan fails to account for

( ) Laws expressly prohibiting it
( ) Lack of centrally controlling authority for determining if code is in violation
(x) Foreign countries
( ) Difficulty of searching a code database of protected code
( ) Asshats
( ) Jurisdictional problems
( ) Unpopularity of weird new laws
( ) Public reluctance to accept weird new forms of licenses
(x) Huge existing software investment
( ) Susceptibility of established software to copyright attack
( ) Willingness of users to upgrade existing software to new violation-free versions
( ) Willingness of users to pay more for the same software
(x) Armies of worm riddled broadband-connected Windows boxes
( ) Eternal arms race involved in all copyright approaches
( ) Extreme profitability of patents
( ) Joe jobs and/or identity theft
( ) Technically illiterate politicians
( ) Extreme stupidity on the part of people who do business with patent houses
(x) Dishonesty on the part of some developers themselves
(x) Development costs that are unaffected by copyrights/patents
( ) MS Office vs. OpenOffice

and the following philosophical objections may also apply:

( ) Ideas similar to yours are easy to come up with, yet none have ever been shown practical
( ) Any scheme based on opt-out is unacceptable
( ) Any idea posted on /. is automatically branded the work of an id: 10T.
( ) The right to develop code independently should not be the subject of legislation
( ) Blacklists suck
( ) Whitelists suck
( ) We should be able to talk about Viagra without being censored
( ) Countermeasures should not involve wire fraud or credit card fraud
( ) Countermeasures should not involve sabotage of public networks
(x) Countermeasures must work if phased in gradually
( ) Writing software should be free
( ) Why should we have to trust you and your "prior art"?
( ) Incompatiblity with open source or open source licenses
( ) Feel-good measures do nothing to solve the problem
( ) Temporary/throwaway development in place of a real project is cumbersome
( ) I don't want the government reading my source
( ) Killing them that way is not slow and painful enough

Furthermore, this is what I think about you:

(x) Sorry dude, but I don't think it would work.
( ) This is a stupid idea, and you're a stupid person for suggesting it.

--
Yeah, right.
Re:Copyright Reform by Dlugar · 2004-12-14 11:27 · Score: 2, Interesting

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

An important point by fyngyrz · 2004-12-14 06:48 · Score: 2, Insightful

Ah, and here is an important point! Patents are very easy to obtain for large companies.

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.

It's not COPYRIGHT, it's LICENSE by argent · 2004-12-14 07:11 · Score: 2, Insightful

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.

He has it backwards by SirLanse · 2004-12-14 08:02 · Score: 2, Insightful

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...

Going nowhere by cfulmer · 2004-12-14 08:26 · Score: 2, Informative

Having just gotten out of my IP exam....

(1) Patents are a lot more expensive and time-consuming. Copyright is free.
(2) Copyright protects expression, (loosely defined -- computer programs have a lot of expression), patents protect inventions. Most computer programs do not have the necessary novelty and/or non-obviousness to be considered inventions.
(3) The Supreme Court has already had a chance to decide that copyright does not extend to software, but declined to do so. See Computer Associates v. Altai.
(4) The shift would effectively put all current software completely out of IP protection -- if you put your invention out for public use and don't file for a patent w/in one year, you're out of luck. Most software is > 1 year old, so this would mean no copyright, no patent.

If there's a change to be made here, it will have to be Congress doing it, not the courts.

Re:Source code is expressive. Object code is not. by csbruce · 2004-12-14 08:40 · Score: 2, Insightful

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.

Limiting software copyrights is a good idea.... by swillden · 2004-12-14 09:04 · Score: 3, Interesting

... 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.

Is Software a Tangible Thing? by Migraineman · 2004-12-14 09:56 · Score: 2, Interesting

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 ...

"Retroactive" prohibitions don't apply here. by Ungrounded+Lightning · 2004-12-14 10:57 · Score: 2, Insightful

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).

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