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."

Comments

Retroactive?

[deft]

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.

Re:Retroactive?

[Ayaress]

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.

It won't happen

[tepples]

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.

Sueing who?

[damicatz]

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.

This would never fly

[tarp]

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.

Who comes up with these ideas

[Henry V .009]

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

Re:Hurt the GPL?

[Sc00ter]

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.

How would patents apply

[vivin]

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.

Re:Hurt the GPL?

[SnapShot]

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.

I agree

[CrazyJim1]

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

Re:MS Welcomes...

[squiggleslash]

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.

Copyright over Patents

[Datasage]

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.

Re:Copyright Reform

[Safety Cap]

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.