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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."
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.
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.
Who is he sueing? It doesn't mention. It should be the other way around. Copyrights should be allowed, software patents should not. Software patents are what causes most of the trouble.
First of all, every major software company including Microsoft will be against this idea, and the BSA with its powerful lobby, is against this idea. This would make it much more difficult for them to protect their software. Patents are just the icing on the cake for software companies. They are much more difficult to get. Copyright has always been a given.
The idea that software could not be copyrighted but books, music, etc. could is hypocritical. Copyright would have to be removed from all those forms of media to be consistent with software not being copyrightable.
It'll never happen.
Doing the exact opposite would be sane. This isn't.
Patents take time and money to get, something a lot of people don't have time or money to do.
Free Mac Mini
A software is a product, and it employs some sort of algorithm or algorithms. So let's say I use an algorithm that some other company developed. Do I have to pay them?
And yes, Open Source will have a problem. A corporation could easily say "Hey the Open Source implementation that you have of XYZ infringes on my patent on the commercial version".
IMHO, I don't think patents will work for software (at least in this form). It's simply too abstract, and too widespread. Writing a poem and writing an algorithm are two different things. The poet can get money for having his poem published in books. But let's say you come up with a rather innovative and efficient algorithm for doing task X, and you work for a company Y, then Y owns the patent on it. So anyone who wants to use it will have to pay money. But what if you came up with another algorithm that does the same thing? Could they sue? What if you're a small company Z that came up with said algorithm? The big guy could take you out...
IANAL, but our laws for software are probably not mature (and well thought out) enough to deal with this... yet.
Vivin Suresh Paliath
http://vivin.net
I like
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?"
Part of the problem is semantics. Is the lawsuit intended to remove copyright protection from "software" (In my mind, the compiled and built executable) or from "source code" (the product of a creative impulse and SHOULD be protected by copyright law IMHO.) If the lawsuit helps limit the abuses of copyright law ("look and feel", DMCA contraints, etc) then I agree with the aims completely, but if it intends to remove copyright protection from source code then I think it is a travesty.
Waltz, nymph, for quick jigs vex Bud.
It seems to me that MS has as much to lose as ith *nix people. If there is no copyright on software then the only way to prevent piracy from becomming legal is the click through agreements, and they seems sort of shakey to me, legally. (IANAL. However, as an example, how do you sell a game to a minor since they can't enter legal agreements?) It seems to me this guy has it backwards. Software Copyright GOOD. Software Patents BAD.
HA! I just wasted some of your bandwidth with a frivolous sig!
Copywrights protect code you've written. Patents prevent everyone from writing code.
God spoke to me.
So let's say that software patents become quite common in the USA and Europe. It's the large companies who are going to be flooding the patent offices with filings for anything they can get their hands on. A small developer, even if they have a kick-ass technology, is much less likely to get a patent on it. There is a big hurdle (cost and administration) in front of them.
So the natural course is, the larger companies will get all kinds of legal rights to technologies, and smaller companies or individual developers won't be able to compete. I guess that's the big business plan for the 21st century; corporations are out of ideas and the last hope is to guarantee themselves some kind of royalty revenue stream, without innovating squat. And this is why, IMHO, the "west" will lose their innovative edge and pave their own road to obsolescence.
- Unix to enter the public domain
- Everything Microsoft did 20 years ago to enter the public domain
- Everything Microsoft published more than a year ago that it hasn't, today, got a patent on, to enter the public domain
- IBM to have more of its technologies in Microsoft products than vice-versa
The suggestion, incidentally, that this has to do with defeating the GPL, is patently absurd (patently, geddit? arf arf!) The GPL can be rewritten within this regime to force all use of patented technologies to be released with source and with all other patented technologies in the same product open too. Additionally, with patents requiring details of implementation, we'll see a lot more source code, documentation on proprietary formats, etc.If you're in the proprietary software business, a successful lawsuit here could not create a worse state of affairs.
Of course, as I see it, it's highly unlikely to be completely successful. You may, at most, see a strengthening of fair use in some quarters, as the courts attempt to reconsolile the constitutional right to due process with the draconian nature of modern copyright law. But there's little reason to believe that copyright law inherently violates due process.
You are not alone. This is not normal. None of this is normal.
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.
Right now, in case nobody has noticed, the European Union is looking at the idea of software patents. If someone were to...
Yeah, yeah, it's spin-doctoring. They're not really saying the patents are bad, they're really saying that patents alone are bad. Spin is the stuff of modern politics, however, and industry has used it enough times against those it doesn't like.
To beat software patents in Europe and (hopefully, eventually) America, we simply show that there are no significant benefits or additional protections offered by patents, according to the software industry itself. It won't influence those set in their ways, but any skeptics who are just along for the ride might be swayed.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Maybe so, but patents are even worse. At least with copyright, there's one set of rules that apply to all cases. With patents, the boundaries are determined by the set of all claims in every patent that exists. That's millions of rules to check against each new line of code I write, with hundreds more being added every single day. What's worse, these claims are written by the very people who benefit from them, and they are often intentionally obfuscated by their authors.
IMHO, copyrights are actually a good match for software *source code*, since it looks and feels a lot like a work of literature. The same isn't so true for object code. Since it is a "weakly encrypted" mechanical transformation of the source, it doesn't provide the customer with any of the benefits of knowledge that copyrights on literature and music were originally intended to promote. However, patents are a particularly poor match for software because of the O(n^2) legal problem of needing to check millions of lines of code against millions of patent claims. (That's a job on the order of 10^12 operations for every large program out there!)
I believe that object code would be better be protected by a totally new IP concept that is tailored specifically for the unique properties of software. Object code would not be eligible for either copyright or patents as they exist today.
It might be something like a standardized EULA that properly balances the interests of the vendor and the customer. (IMO, one-sided vendor-written EULAs should also be disallowed unless they get an actual ink-and-paper signature on a valid contract prior to the sale). Instead of being based on the concept of physical copies like standard copyright, which doesn't map well to networks of computers, it would be based on the actual usage patterns of computer software. The rights of someone to compile some source code they have into object code, or to make copies of object code, would be dictated by this new concept, not by copyright.
I think that the new form of protection would ideally provide some weak protection against blatant ripoffs of look-and-feel and innovative new features, but it should explicitely allow for interoperability. Maybe published APIs and file formats should be required to get any IP protection at all. To combat monopoly-protecting market barriers, any protections under this new concept would also be subject to the stipulation that they can be licensed by anyone under reasonable-and-nondiscriminatory terms.
Of course, don't hold your breath wating for anything like this to happen in the real world.
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?
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
( ) 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.
The suggestion, incidentally, that this has to do with defeating the GPL, is patently absurd (patently, geddit? arf arf!) The GPL can be rewritten within this regime to force all use of patented technologies to be released with source and with all other patented technologies in the same product open too. Additionally, with patents requiring details of implementation, we'll see a lot more source code, documentation on proprietary formats, etc.
The problem is that to gain copyright on your code, you have to doTo say the GPL could just be rewritten to work off patents leaves a big hole, in that the way the current GPL can be enforced is through the 'by default' granting of copyright on the code, and if someone violates the GPL then they violate the copyright. If copyright was withdrawn, then theres nothing protecting this code by default, so how would you punish someone for violating the GPL? Patents are too costly to apply for for everything on sourceforge, and indeed the majority of OSS code isnt patentable anyway.
For example, the Linux kernel. You cant patent it in its entirety. You would have to find something patentable within it, and then you loose all protections of this patent if the person decides to rip that part out. Its simply unenforcable.
... 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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