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Source Code & Copyright

Posted by ryuzaki0 on from the whither-the-courts dept.

cunamara writes "Patently-O has posted a discussion of Aharonian v. Gonzales . Aharonian is trying to build a database of source code as a repository of prior art. The interesting thing is in part of the decision, which is that "Conversely, if plaintiff independently creates software that is functionally identical to other software, he does not infringe any copyright on the other software's source code, even if his independently created source code is nearly identical to the copyrighted source code." Interesting. But how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?" I'm actually not as interested in the copyright side of things as I am in the notion of using something like that for prior art of software patents. The argument that source code is uncopyrightable, with some extensions could be applied to almost all, say, fiction stories since no one's written a truly new story in like five thousand years.

2 of 182 comments (clear)

  1. The status of the case by Anonymous Coward · · Score: 5, Informative

    Dismissed. The case is now on appeal.
    The idea that something may not infringe copyright in spite of the fact that it is nearly identical, is a bit of a stretch. It is true sometimes. For instance, if there is a standard way of doing things then bits of code will be identical. On the other hand, for those bits of code that may be copyrighted, the statement sounds nonsensical. Remember, not all code can be copyrighted. Much/most/all the code SCO claimed was in violation of its (disputed) copyrights is not copyrightable.

  2. The Phoenix BIOS experiment by Richard+Kirk · · Score: 5, Informative
    Usually this sort of discussion relies on hypothetical arguments. However, there are real cases where software has been created under controlled conditions, and then analysed for similarity. The Phoenix BIOS was written by people with coding experience but with no prior knowledge of the BIOS used in the IBM PC. They were given a functional description of what the BIOS should do. Care was taken to ensure they could not reverse engineer the IBM BIOS or directly compare their code to the IBM code.

    What they wrote ended up having large bursts of code that was identical to the IBM PC BIOS. Sometimes there is only one good way of doing something.

    Well, this is what I remembered reading years ago. It was an unusual exercise because the actual amount of code was small, so the potential legal cost per byte was very high. If there is someone out there who actually was part of this project, maybe they can post their experiences, and say whether I have got it vaguely right.