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EU Court Adviser Says Software Ideas Can't Be Copyrighted

Posted by timothy on from the perhaps-a-bot-but-not-robotic dept.

bhagwad writes "The EU continues to ooze common sense as a court insists that software functions themselves cannot be copyrighted. Drawing a box or moving cursor are examples. To quote: 'If it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development.'" Note that this is a "non-binding opinion by Yves Bot, an advocate-general at the Luxembourg-based EU Court of Justice," and that the court "will rule on the case next year."

58 of 196 comments (clear)

  1. Please let the Americans know this ... by Dark$ide · · Score: 5, Insightful
    Dear EU,

    Can you point out to those folks on the other side of the Atlantic that software patents stiffle invention and innovation.

    Thanks.

    --

    Sigs. We don't need no steenking sigs.

    1. Re:Please let the Americans know this ... by Nerdfest · · Score: 5, Funny

      His name may make them a little suspicious.

    2. Re:Please let the Americans know this ... by Anonymous Coward · · Score: 2, Insightful

      They don't have to. U.S. courts recognize International Law as it exists.

      Except when it doesn't suit them, and thats pretty much always.

    3. Re:Please let the Americans know this ... by NoNonAlphaCharsHere · · Score: 5, Insightful

      Dear EU,

      Can you point out to Slashdot moderators the difference between copyright and patents?

      Thanks

    4. Re:Please let the Americans know this ... by poetmatt · · Score: 3, Insightful

      maybe you don't realize that people do try to claim copyright on API's which are software.

      Where have I heard that before....oh right? maybe the google vs oracle case?

      Patents and copyright both have problems, at least we can work on one at a time.

    5. Re:Please let the Americans know this ... by Aryden · · Score: 2, Interesting

      We are software developers. We live on opposite sides of the planet and have never communicated with each other. Both of us come up with an idea for an application. We both choose to make and market this app. You file your copyright, I file mine a fed days later. 6 months down the road, you come across my version and seeing that it does the same thing, you file suit against me for violating your IP. You win and I go out of business paying you off. Now, the thing is, the users liked mine better. It was faster, had better interfaces, interacted with local non-application specific data etc. How is this fair market competition?

    6. Re:Please let the Americans know this ... by Hentes · · Score: 2

      Software is still protected by copyright. "Ideas" are not software.

    7. Re:Please let the Americans know this ... by Attila+Dimedici · · Score: 3, Insightful

      But ideas are not supposed to be protected by patents. Patents are supposed to protect the design of a device, not to protect an idea.

      --
      The truth is that all men having power ought to be mistrusted. James Madison
    8. Re:Please let the Americans know this ... by bws111 · · Score: 3, Informative

      This is nonsense. First, you do not 'file' copyrights. You can register them, but almost no-one does.

      To win a copyright case, you must prove that copying (intentional or otherwise) occurred. For software, that means that either the binaries are the same (very easy to prove), or the source code was copied. For the source code to be copied, you must have had access to it. So the first thing the plaintiff must do is show you had access to his source. Then, they make you turn over your source, and compare them. If they are substantially similar, you have a problem. How often does that happen when in fact there was no copying? Almost never.

      Now, let's take a more likely case - one that does in fact occur. You spend years designing and developing a product. You release the product. I managed to get your source code (legally or otherwise). I spend a few weeks modifying your code to make it faster, prettier, etc. Users like yours better, so mine doesn't sell. How is THAT fair market competition? It isn't.

    9. Re:Please let the Americans know this ... by lgw · · Score: 2

      Patents. You're thinking of patents. Copyright is different.

      Modded +5 dead wrong.

      --
      Socialism: a lie told by totalitarians and believed by fools.
    10. Re:Please let the Americans know this ... by Theaetetus · · Score: 2

      Patents protect implementations.

      If that were true, then someone else's implementation of a patented device wouldn't infringe. Patents protect the underlying idea, regardless of the implementation.

  2. Don't worry Apple by GameboyRMH · · Score: 5, Funny

    Rectangles with rounded corners are still safe.

    --
    "When information is power, privacy is freedom" - Jah-Wren Ryel
    1. Re:Don't worry Apple by mr1911 · · Score: 4, Insightful

      Because that was a design patent, not a utility patent on a software concept.

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    2. Re:Don't worry Apple by Carewolf · · Score: 2

      That is a design protection, which is something completely different - unfortunately. Let us hope this recent sanity spreads so that the idea that "Software ideas can't be owned" becomes not only dominant but used in lawmaking.

    3. Re:Don't worry Apple by JAlexoi · · Score: 2

      Not even a patent, it's a non-examined* registered community design.

      * - Community Designs are not examined upon registration.

    4. Re:Don't worry Apple by mr1911 · · Score: 2

      It's still bullshit.

      That may be, but if bullshit is the law it is hard to fault companies for using it to their maximum advantage, as it is almost certain someone would find a way to use the bullshit against them.

      If you don't like the game, yelling at the players is not effective. Change the rules.

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    5. Re:Don't worry Apple by mr1911 · · Score: 4, Insightful
      OK, I'll bite for a bit of 101 review, but it will be brief.

      What's the difference?

      A design patent is specifically about the look and feel of a product. This may include rounded corners. It does not rely on prior art in that no one made an electronic device with rounded corners before, but that this tablet computer with rounded corners and certain other features is a certain look and feel that does not exist yet in the tablet computer market.

      And, how is that difference relevant?

      A design patent is look and feel, a utility patent is how you do something.

      It is really quite simple when you quit trying to make it difficult.

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    6. Re:Don't worry Apple by alendit · · Score: 3, Insightful

      I love how corporations are, supposedly, people, but noone expects them to act ethically or for the good of the society. One would think, it was ment to be the other way around...

    7. Re:Don't worry Apple by alendit · · Score: 3, Interesting

      I am making the case, that people who exploit loophole are generelly frowned upon by other people. A ambulance chasing lawer would be a typical example. Strangely, it's A-OK for corporations to do so.

      And I reffer to your "That may be, but if bullshit is the law it is hard to fault companies for using it to their maximum advantage[...}". It would be not hard at all, it we would be talking about people.

    8. Re:Don't worry Apple by Hatta · · Score: 2

      And, how is that difference relevant?

      A design patent is look and feel, a utility patent is how you do something.

      I should have been more explicit. How is that difference relevant to the reasons stated here that software ideas cannot be copyrighted.

      "If it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development,"

      Why does that argument not apply equally to design patents?

      It is really quite simple when you quit trying to make it difficult.

      Everything's simple if you ignore nuance.

      --
      Give me Classic Slashdot or give me death!
  3. Re:Finally! by dingen · · Score: 3, Interesting

    So drawing a box or moving a cursor *on a PC* should be applicable to copyright?

    --
    Pretty good is actually pretty bad.
  4. If only... by mmcuh · · Score: 2

    "... that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development." If only this common sense extended to all patents as well. As if that would ever happen.

    1. Re:If only... by Kenja · · Score: 2

      Yup. Patents are to cover inventions (physical objects originally), copyright is to cover works (such as music, books, etc).

      --

      "Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
    2. Re:If only... by egamma · · Score: 2

      Isn't that exactly the theory behind copyright as well?

      The theory of copyright is that if you spend a year of your life and all your savings creating a useful device, that someone else shouldn't be able to come along, rip your work apart, and create a knockoff, charging less for it since they don't have research costs to recoup.

      --
      Battlemaster--Game with friends in medival realms
  5. Summary Clarification by Anonymous Coward · · Score: 5, Informative

    " software functions themselves cannot be copyrighted"
    When it says "software functions", it doesn't mean functions, it means features, eg. click button to update the table. It's basically confirming that copyright can't be used in the same way as patents, that's why we have patents in the first place [as brain-damaged as they may be].

  6. How is this relevant? by ksd1337 · · Score: 2

    I thought it was software patents that were the problem, not copyright. Or am I missing something?

    1. Re:How is this relevant? by ledow · · Score: 2, Informative

      The EU already doesn't allow software patents anyway (and those it has allowed are unenforceable).

    2. Re:How is this relevant? by Microlith · · Score: 4, Informative

      When you copyright your software, you copyright your specific implementation of the code. If someone comes along and writes software that performs the same function but without infringing on your copyright, you are facing competition.

      SAS asserted that they were the subject of copyright violation, and attempted to shut down a competitor that created an independent implementation.

    3. Re:How is this relevant? by Theaetetus · · Score: 5, Informative

      The EU already doesn't allow software patents anyway (and those it has allowed are unenforceable).

      Yes, it does. Or rather, it does in the same exact way as the US allows software patents... and US counterparts for the ones that are unenforceable are also unenforceable here.

      In both Europe and the US, software on its own (or 'per se') is unpatentable, but a machine that executes software is patent eligible. Similarly, a method performed by a machine executing software is also patent eligible. Basically, the EPO had a parallel decision to the Bilski decision here, with the same result - software is still patentable, provided it's tied to a machine.

    4. Re:How is this relevant? by JAlexoi · · Score: 2

      Well... The EU has no patent authority per se. The EPO however, does allow software to be patented with limited conditions. Not all EU countries are part of EPO and not all EPO members are EU members. That being said, the EPO looks like a much saner organisation that USPTO.

    5. Re:How is this relevant? by Theaetetus · · Score: 3, Informative

      No it doesn't. You are comparing two different systems and claiming that they are the same; one system where software can be patented, and another where hardware can be patented, but the hardware can contain firmware. Those are two different things. In the E.U. you can't patent pure software, or to use your terminology "software not tied to a machine". This is not the same as the U.S. - in the U.S. software is patentable. You don't have to put it inside a machine and patent that - you can literally patent pure software.

      Sorry, that's simply not true. Rather than going to some European lobbyist group for what US law is, I'll quote the USPTO's own manual for patent examination procedure:

      Descriptive material can be characterized as either "functional descriptive material" or "nonfunctional descriptive material." In this context, "functional descriptive material" consists of data structures and computer programs which impart functionality when employed as a computer component... Both types of "descriptive material" are nonstatutory when claimed as descriptive material per se, 33 F.3d at 1360, 31 USPQ2d at 1759.

      ... Data structures not claimed as embodied in computer-readable media are descriptive material per se and are not statutory because they are not capable of causing functional change in the computer. See, e.g., Warmerdam, 33 F.3d at 1361, 31 USPQ2d at 1760 (claim to a data structure per se held nonstatutory)... Since a computer program is merely a set of instructions capable of being executed by a computer, the computer program itself is not a process and USPTO personnel should treat a claim for a computer program, without the computer-readable medium needed to realize the computer program's functionality, as nonstatutory functional descriptive material.

      See? Same thing as under the EPC. Computer programs per se are not patentable.
      Even your link notes this:

      "The EPO has meanwhile granted more than 30,000 pure software patents in anticipation of the new legislation, and the number has recently been rising at a rate of 3,000 per year... the European Patent Organisation, i.e. the intergovernmental organisation that runs the European Patent Office, attempted to delete all the exclusions listed under Art 52 of the European Patent Convention. Due to public resistance which they apparently did not anticipate, this effort failed."

      Bolded for emphasis. A "pure" software patent is not allowed in either Europe or the US. Patents to software executed by a machine, however, are allowed in both.

    6. Re:How is this relevant? by Theaetetus · · Score: 2

      Interesting. It was my understanding that the USPTO granted software patents if the algorithm produced a "useful, concrete and tangible result", and that test was so wide that it effectively allowed all software patents... However, it seems that this has now been supplanted by Bilski

      Pretty much.

      and the need for the software to "transform any article to a different state or thing", and where the data structures being transformed need to be "representative of physical objects or substances." So, if I am interpreting this correctly, in the U.S. you can patent a method consisting of a pure software algorithm as long as it involves some kind of processing and transformation of data structures that represent physical objects or signals?

      Not exactly... The Federal Circuit had two tests in Bilski, the transformation test you noted, and another one called the machine test: a method is patentable if it is tied to a machine. The transformation test really covers things like transformative processes - vulcanizing rubber, for example - while the machine test is more about software.

      Now, just to add a pedantic little twist, the Supreme Court reversed the Federal Circuit in Bilski v. Kappos, and said that though the machine-or-transformation test was a useful tool, it wasn't the only tool. A process that was neither transformative nor tied to a machine could still be patentable, as long as it wasn't abstract. But then, they never explained what that meant. Oy.

      And in the E.U. it appears you can patent software as long as it has a "technical effect" such as reducing access time to physical memory or device. It is even possible to patent the software for "decoding a radio signal" (as suggested in the Wikipedia article), which I would have thought would class as a mathematical algorithm. How depressing.

      What was the E.U. case parallel to Bilski that you mentioned? It seems last year the EPO refused to clarify the situation of software patents.

      Not sure... I don't practice before the EPO, so I'm not up on the specific cases.

  7. Re:Finally! Yes... by Anonymous Coward · · Score: 2, Funny

    A kink in your armor, you British Scum.

  8. Re:Finally! by riverat1 · · Score: 4, Informative

    I think you're thinking about patenting software. Copyright is a different thing. Generally you patent a device. Copyright is for protecting written information.

  9. Intellectual Property is killing everything by kawabago · · Score: 5, Insightful

    There are so many lawsuits flying around over patents, copyrights and wishful thinking that it's no wonder we are in recession. It doesn't matter what you want to do, you are going to get sued by someone. So why bother? People don't.

    1. Re:Intellectual Property is killing everything by Pope · · Score: 4, Insightful

      There are so many lawsuits flying around over patents, copyrights and wishful thinking that it's no wonder we are in recession.

      LOL. Yes, clearly recessions are caused by patents and copyrights, and not out of control bankers, loose regulations surrounding investment houses, and various European governments not being able to control their budgets.

      --
      It doesn't mean much now, it's built for the future.
    2. Re:Intellectual Property is killing everything by Talderas · · Score: 2

      As more and more money is funneled to IP lawyers, that's less funding dedicated to investing in one's business! His assumption clearly makes sense!

      --
      "Lack of speed can be overcome. In the worst case by patience." --Znork
    3. Re:Intellectual Property is killing everything by robot256 · · Score: 5, Interesting

      I think both out-of-control bankers and out-of-control IP squabbles are symptoms of the current attitude in society, or at least among MBAs, that money can be created out of nothing. It's financial alchemy: it appears to work at first, but only because they are siphoning money away from somewhere else in the process, hence the recession. Solve the underlying attitude problem, and we solve all the symptoms at once. How to do that, I have no idea.

    4. Re:Intellectual Property is killing everything by dyingtolive · · Score: 2

      Why can't it be all of the above?

      --
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    5. Re:Intellectual Property is killing everything by risom · · Score: 2

      I agree with your statement but wanted to add that that pretty much all of the struggling european governments do so because they saved their speculating banks - which speculated with risky US housing loans. Greece and Ireland for example did not have unusually high dept pre 2007.

    6. Re:Intellectual Property is killing everything by lgw · · Score: 2, Insightful

      Greek debt was about 100% of GDP for quite some time. "Unusually high"? Who knows. "Unsustainably high"? definitely. Meanwhile, the US debt recently passed 100% of GDP. Yeah, we're pretty fucked.

      --
      Socialism: a lie told by totalitarians and believed by fools.
    7. Re:Intellectual Property is killing everything by risom · · Score: 2

      Yeah, it was about 100% for quite some time, but they at least could keep that number stable. Have a look at this graph, the rise in dept started in 2007:

      http://en.wikipedia.org/wiki/File:Greece_public_debt_1999-2010.svg

      Compare that with e.g. Japan here: http://en.wikipedia.org/wiki/File:Dept.svg

      Fun Fact BTW: Currently Greek dept in absolute numbers is about 170 billion Euros. Germany still ows Greece WW II reparation payments (we wrecked that country and its people pretty bad), which are (inflation adjusted but without interest counted in) about 80 billion Euros. And our Chancellor has the fucking nerve to tell the Greek they fucked up their economy by themselves.

  10. Company A and Company B by Oswald+McWeany · · Score: 3, Interesting

    My opinion.

    Company A should not be able to use Company B's sourcecode should they decompile it (or steal it).

    However if Company B creates software that moves widgets around a screen depending on buttons you press on a keyboard. Or causes widgets to do tasks- they should not be able to prevent Company A mimicing their software.

    Certainly, things like corporate logos should be protected- but what the software does functionally shoudln't.

    If one company can independantly write source that acts the same as another company- they have derived it seperately and fairly.

    I'm of the same feelings of patents too. If company A can make a machine to do the same as company B- they should be allowed.

    They shouldn't be allowed to mould their parts on the other company and build their own machine that way- but if they can build an equivalent machine that does the same thing- that shouldn't be illegal.

    --
    "That's the way to do it" - Punch
  11. Re:Outrage by Anonymous Coward · · Score: 4, Funny

    Channel Steve Jobs much?

  12. Re:But they can't by AdrianKemp · · Score: 2

    I'll just assume that's a troll... no one is legitimately that stupid.

  13. Re:How Much by Anonymous Coward · · Score: 5, Funny

    There are Packers fans in Europe?

  14. Important distinction for those who don't RTFA by SecurityGuy · · Score: 5, Informative

    He's not saying that functions like

    drawBox(args) {
        stuff...
    }

    are not copyrightable. He's saying that the function, aka the generic software method, of drawing a box is not copyrightable. Nobody copied the CODE, which would be a copyright violation. They reimplemented the idea. This is just the equivalent of saying that you can still write books about kid wizards even though JK Rowling already did it. You can have spells that petrify people (that's would be a function, right?), but if you go as far as lifting entire passages (copying the actual code that comprises the function), THEN you're talking about a copyright violation.

  15. Re:Finally! by ackthpt · · Score: 2

    Some common sense! You can't copyright software on its own! It must be part of a device that you are copyrighting.

    I'm pretty sure they're violating the rights of the holders of copyrights on use of Common Sense.

    If the holders are the USPTO then it's not like they were doing anything with those rights, anyway.

    --

    A feeling of having made the same mistake before: Deja Foobar
  16. Re:Finally! by AmberBlackCat · · Score: 5, Funny

    Does the box have rounded corners?

  17. Re:Finally! by Nailer235 · · Score: 2

    This case deals in the realm of copyrights, not patents. It's important to note that this is also the rule in the U.S. - neither ideas nor systems/processes/procedures can be copyrighted. The problem, however, is drawing the line between "ideas" (which aren't protected by copyright) and "expression" (which is protected by copyright). As in many areas of law, there is no easy way to determine what exactly is an idea and what exactly is an expression. That's what this case dispute's hinges around. In conclusion, not allowing copyright protection for ideas is nothing new and is absolutely not newsworthy. [DISCLAIMER: I am NOT a lawyer, and I am NOT offering legal advice.]

  18. Re:Finally! by Comboman · · Score: 5, Insightful

    You can't copyright a recipe but you can copyright a cookbook. Likewise you shouldn't be able to copyright a software design/function but you should be able to copyright a software implementation of that design/function.

    --
    Support Right To Repair Legislation.
  19. Re:Finally! by bky1701 · · Score: 5, Insightful

    "Copyright is for protecting written information."

    Copyright is for controlling the distribution of information. The only protection for information is duplication and distrubition.

    --
    Great Intellect...
  20. Re:Finally! by PopeRatzo · · Score: 3, Insightful

    Copyright is for controlling the distribution of information. The only protection for information is duplication and distribution.

    Very good. You mind if I use that?

    --
    You are welcome on my lawn.
  21. Re:How Much by PopeRatzo · · Score: 3, Interesting

    How much money will US corporations throw at the EU cheeseheads to decide in their favor?

    Friend, the corporations we have to worry about are not the "US corporations" or the "British corporations" or the "French corporations".

    The ones that are destroying our societies on both sides of the Atlantic (and Pacific) are the transnational corporations who strive for a position of power above mere nations.

    It's not yet too late to put these out-of-control entities back in their place, but it will take a long hard fight. The good news is that the fight has begun, apparently all around the world.

    --
    You are welcome on my lawn.
  22. It's not law, it's judge's opinion by Kartu · · Score: 2

    It's not law, it's interpretation. Dutch judge dismissed it citing "numerous" prior art.
    To German judge Johanna Brueckner-Hofmann it looked different, and was worth banning Samsung Galaxy Tab.

  23. Re:Why can't the US be so sensible? by znerk · · Score: 2

    More and more, I find EU rulings to be oh-so-astute.

    Oh, how quickly our memory fades.

    --
    This work is licensed under a Creative Commons Attribution 3.0 Unported License.
  24. Re:Finally! by riverat1 · · Score: 2

    Yes, I could have stated that better. Copyright allows the creator of an original work to control the distribution of it for a certain amount of time. It doesn't just apply to written works.

  25. Re:Finally! by jbengt · · Score: 2

    "Copyright is for protecting written information."

    Copyright is for controlling the distribution of information.

    Neither is correct. Copyright is for a awarding a monopoly on creating tangible copies of a creative work. It does not need to be a written work (e.g. it could be an audio recording or a film), and it definitely does not include any information conveyed by the creative work.