I don't accept the premise. When people refer to Scrabble, they are referring to the Hasbro property.
Well, ultimately, that's a question of fact. Neither of us can know, right now, what people mean. You think that the relevant segment of the public still finds the SCRABBLE mark distinctive. I think that they regard the mark as generic. Proper survey evidence is necessary to settle this question.
Almost all games have variations offered by competitors--in fact, that's what drives the market.
Right, that's why it's so impossible to find a chess set these days; with the game being generic and all, no one wants to be in that market. Oh, wait, actually chess sets are common as dirt. And there's practically no variation at all in gameplay. In fact, the only copyrightable bits are those which are unnecessary to the playing of the game: the shape of the pieces, and purely decorative parts of the board.
To foster progress and innovation, not fund a lazy freerider.
To let the public enjoy the beneficial effects of market competition is another reason for the public domain, actually. So long as a work is copyrighted, the copyright holder will use his monopoly to charge above-market-value prices for the work. Once the copyright expires, the work becomes a commodity, and competitors can drive the price down to around the marginal value per copy, which makes the work accessible for a greater part of the public. I can go out and buy a cheap paperback copy of Hamlet, or I can spring for a fancy leatherbound edition, or, these days, I can just download it for free. The public is better served by this than by having only one source that can arbitrarily set prices as high as they please.
So there's nothing wrong with lazy free riders. Direct competitors -- the ones who offer the same product -- are just what we want in order to restore the work to the free market once the legal monopoly is over with (assuming that it ever existed). We see the same thing in the pharmaceutical market with drugs that have fallen out of patent and are being made generically. Or are you upset that Bayer faces competition on the aspirin front?
The rules do not extend to the board, the distribution of pieces, or the values of the scoring.
Really? Why? Most games' rules deal extensively with the board, the number of and type of pieces, and the scoring. If I try to play in tournament scrabble with a bag full of blank tiles, and I claim that they are all worth 10 points each, and the board I bring along has a dozen quadruple word score squares, I bet they're going to say that my set is against the rules.
The actual rules of the game are more than what Hasbro has printed on the little paper insert. That expression of the rules assumes the standard board, tile distribution, and scores. Implicit or express, a rule is a rule.
No, gameplay is exactly the same. You are conflating strategy and outcome with gameplay.
They're all connected. Change the gameplay, and the others follow suit.
Since the game board is essential to Hasbro's game and constitutes the lion's share of the copyright scope, infringement by total reproduction of that copyright cannot be de minimis.
It can be if virtually nothing about the game board is copyrightable to begin with. We're basically looking at the Altai test here: there can only be an infringement action for the parts of the board that are copyrightable. Uncopyrightable parts of the board can be copied freely, even if that's the lion's share. In this case, of the part of the board within the playing area, the only possibly copyrightable bits are the color choices for the scoring squares. A case solely founded on copying those (since copying the rest is lawful) doesn't seem like a winner. That the tiny scrap of copyrightable subject matter was totally copied doesn't prevent that copying from nevertheless being de minimis if the scrap was tiny enough. Apparently, Hasbro should have decorated the game more. Who knows, mayb
Scrabulous isn't saying "play our scrabble game"--they're intentionally exploiting the Scrabble brand to attract customers. That's a very different process than the consumers' widespread use genericizing one vendor's mark.
If customers have already come to genericize the mark, then Scrabulous is free to act. And one of the things they can do is to create their own mark which is based upon the generic mark. In this case, I'd say that it is around the border of suggestive and descriptive. They probably would've been smarter to make up a fanciful mark, and advertise it as [MARK]-brand scrabble game, if they nevertheless wanted to mention scrabble somehow. If I only had a nickel for every time people were so reckless.
The mark is ipso facto distinctive if there are no competing marks.
No, it's not, as the Shredded Wheat case teaches us:
The plaintiff seems to contend that even if Kellogg Company acquired upon the expiration of the patents the right to use the name shredded wheat, the right was lost by delay. The argument is that Kellogg Company, although the largest producer of breakfast cereals in the country, did not seriously attempt to make shredded wheat, or to challenge plaintiff's right to that name until 1927, and that meanwhile plaintiff's predecessor had expended more than $17,000,000 in making the name a household word and identifying the product with its manufacture. Those facts are without legal significance. Kellogg Company's right was not one dependent upon diligent exercise. Like every other member of the public, it was, and remained, free to make shredded wheat when it chose to do so; and to call the product by its generic name. The only obligation resting upon Kellogg Company was to identify its own product lest it be mistaken for that of the plaintiff.
A mark is generic if it is so perceived by the public; competition doesn't matter. In fact, I'd say that the presence of competition is likely to keep a mark distinctive. Businesses get lazy about their marks in the absence of competition, and without competition, the public doesn't see the good or service marketed in conjunction with a different mark, leading to too much association of the mark with that which is marked.
Of course, things don't come to a head until some competitor decides to make use of the mark.
Scrabulous isn't a competitor, it's a reproducer.
I see no difference. Competition doesn't require innovation.
It has not been genericized, because when people refer to Scrabble, they are not referring to word-tile games, they are referring to Scrabble, one particular, proprietary variant.
If the game is not proprietary, however, would you agree that people are therefore referring to the game itself, rather than the version of the game sold by Hasbro as distinguished from identical versions of the game from other sources? If so, then it is generic. It's only distinctive if people are referring to Hasbro's game, rather than to identical games from other sources.
The Scrabble board layout and scoring system are again, arbitrary and proprietary. There is no legitimate need to reproduce the particulars of the Scrabble board in order to replicate the game play.
Au contraire. In order to perfectly replicate the gameplay, the layout and scoring system must be copied. Consider: if you wrote down the moves of the game, as is done in chess, and replayed that game on two boards, one with Hasbro's layout and scoring system, and another one which was different, the outcome of the two games would be different. Perhaps it would be so different that a different player would have won. If these things changed, then players would want to adopt different play strategies (e.g. what if the triple word scores were closer together, that you might be able to get two fresh ones on a single play?). Clearly, the gameplay is greatly effected by these things. You cannot possibly play the same Hasbro variant of the game without them,
I'm not sure whether the rules explicitly mention a star
Just because it's not in the written copy of the rules as promulgated by Hasbro, doesn't mean that it isn't a rule. All the boards Hasbro makes are identical in layout, and the written rules assume that you'll use one of those boards. Thus, the implicit rule is that that is how the board is arranged. If it didn't matter, why the uniformity? Golf courses are not all identical, so that's a game where the rules don't specify a particular layout, but plenty of other games do, e.g. football. That there are variant rules doesn't mean that the more standard rules are specially protected either. The 'standard' rules for monopoly involve nothing happening on Free Parking, but many variants have that space do something; they're all unprotected.
Besides, the main point is that the arrangement of spaces is a part of the method for playing the game, rather than being a mere decoration that isn't in some way involved with the gameplay. Methods are not copyrightable. That there are alternative methods just makes them uncopyrightable too. Creativity and originality don't matter when the subject matter is not copyrightable in the first place. Methods are only patentable, and any scrabble patent has long since expired. If Hasbro wants to monopolize the method of playing the game, they'll need to invent a whole new set of patentable rules (i.e. novel and nonobvious) and get a patent on them. Whatever game that is, it won't be scrabble, though; we already have scrabble.
Again, this is dependent on the game itself being generic.
Trademarks don't protect the marked good or service. If Levi's sells LEVI'S-brand blue jeans, that doesn't prevent someone else from selling blue jeans as well. If LEVI'S becomes synonymous with blue jeans in the minds of customers, then competitors can use that mark as well, it having become generic.
The SCRABBLE mark can't be used to stop someone from producing a game that is functionally identical in every respect to the already-marked game. The most that the mark is good for is making competitors choose a name that is not confusingly similar. But if the mark has become synonymous with the game itself, then the mark is no longer protected, and competitors can use it.
Xerox has competitors. Original games do not. You never saw the shelves of stores lined with games with that board layout, seven letters, where an X is worth 8 points. People don't associate crossword games with Scrabble. They associate Scrabble with Scrabble. You have to have competitors in order to have a generic effect.
No, customer perception is everything. It doesn't matter whether or not there is competition, what matters is whether customers find the mark distinctive or not. And besides, there is competition: Scrabulous.
A good example of this would be the Shredded Wheat case in the 1930's. Shredded wheat cereal had originally been the subject of a patent, but it had expired. Nevertheless, for some time, no one other than the manufacturer, National Biscuit, bothered to make it. Eventually, Kellog's started to, was sued for trademark infringement, and won, on the basis that the SHREDDED WHEAT mark was generic. That the mark merely described the product, and so was fair game for anyone to use, rather than being a trademark indicating that a particular batch of so-marked cereal was made by National Biscuit, rather than someone else. From that case:
It is contended that the plaintiff has the exclusive right to the name 'Shredded Wheat', because those words acquired the 'secondary meaning' of shredded wheat made at Niagara Falls by the plaintiff's predecessor. There is no basis here for applying the doctrine of secondary meaning. The evidence shows only that due to the long period in which the plaintiff or its predecessor was the only manufacturer of the product, many people have come to associate the product, and as a consequence the name by which the product is generally known, with the plaintiff's factory at Niagara Falls. But to establish a trade name in the term 'shredded wheat' the plaintiff must show more than a subordinate meaning which applies to it. It must show that the primary significance of the term in the minds of the consuming public is not the product but the producer.
Again, if people think the game itself is called 'Scrabble' then there is no trademark. The game-playing public has to actually think that the game is the SCRABBLE-brand version of a particular crossword game, and thus that all SCRABBLE-branded products share a common source. If it's just Hasbro's version of the scrabble game, and other people may or may not have their own versions of the scrabble game, then no trademark.
There's no rule that says it must be 15 by 15, nor do the rules specify the arrangement of pink and blue squares (or their effect).
Then how come the boards are all uniform in the number of squares and the arrangement and effect of squares? Golf is a game where the courses are allowed to vary significantly (and miniature golf, even more so). Scrabble is nothing like that. If there were no rule, we'd surely have seen some variation, because it wouldn't matter.
It is not the entertainment product of a single company, produced and marketed specifically for years by a corporate effort.
So? That's totally irrelevant as to the copyrightability of the rules. Game rules are a method for playing the game, and methods are not ever copyrightable. Period. If Hasbro wanted a p
People don't think that all crossword games are Scrabble.
No, not all crossword games, but I think that most people believe that the game with the SCRABBLE mark attached is the game of scrabble, and not merely a SCRABBLE-brand crossword game. Trademarks are really interesting in that if your trademark is really successful, that success is likely to backfire, as your customers begin to associate the good or service itself with the mark. It's an old story. Just look at the massive efforts Xerox has had to undertake for decades to try to avoid this (and it's never been tested, so no one knows if they have succeeded). Scrabble correctly marks their product, but other than that, I don't think they've engaged in the right sort of customer education to keep their mark strong and distinctive, and I think they'll wind up paying the price for it.
How you can find an arbitrary board arrangement and an arbitrary scoring system to be insufficiently original is puzzling, if you'll pardon the pun.
I didn't say it wasn't original, it's just not copyrightable. The rules dictate the arrangement of the board and the scoring system. To play the game in question, you have to have a 15 by 15 grid, with certain specific squares that have certain specific attributes. You can't mix them up without having different rules. Think of basketball: you can't arbitrarily swap the 2-point and 3-point scoring areas while still adhering to the rules; the rules control the arrangement of the playing area. Ditto, the scoring system.
The most I see that's copyrightable here are the color choices on the board. I don't think that the arrangement of letter and point value on the tiles would survive the merger doctrine, however. And since the Scrabulous board doesn't copy the non-grid areas of the regular scrabble board, those parts don't matter. If all they've got on the copyright front are the color choices for the various bonus squares, that seems extremely weak to me. Could be de minimis.
It's quite easy to paint the picture that they're exploiting what they see as a weak mark if they take up your line of reasoning, intentionally supplanting, rather than innovating, improving, or adapting.
If the mark is generic, as I suggest, then it doesn't matter what the motives of the Scrabulous folks are. They're perfectly within their rights to use a non-distinctive mark regardless of the effect on Hasbro. Remember, while copyrights and patents are interested in increasing the scope of human knowledge, trademarks are not. Trademarks don't care about novelty, originality, creativity, etc. It's more practical than that.
An interesting thing about game rules is that to the extent that there is only one, or are only a few, reasonable ways to express the rules, then they wouldn't be copyrightable, lest a copyright on the expression effectively merge with the idea, preventing other people from using it. This has come up in game rule cases before.
It is not trivial -- the layout of the board is critical to the mechanics of the game.
Why do you imagine copyright law can't apply to it? What makes the design of a game board special?
You've nailed the problem right there. If the rules dictate the design of the board, then the board is not copyrightable, lest the copyright prevent other people from using the public domain game rules. It's a very open-and-shut application of the merger doctrine. Scenes a faire would get you to the same result as well.
Irrelevant art on a game board -- think of Candyland -- is certainly copyrightable, because it doesn't have a thing to do with the game mechanics. Necessary art on a game board -- think of chess -- is not.
This means that people can play Scrabble from a source that is not Scrabble.
And if people think the game is called SCRABBLE, rather than that the game is called 'crossword game,' this particular one being from the source associated with the SCRABBLE trademark, then the mark is generic. And hey, it looks like you just did that right there!
The SCRABBLE trademark is very weak, if viable at all. The copyright in the board and piece art seems likewise. Hasbro has their work cut out for them.
But trademarks do suffer from genericide. I think that this has happened in the case of SCRABBLE. Remember, the sine qua non of trademarks is that they denote that all so-marked goods or services share a common origin; they do not, however, denote the name or type of product which is marked. Hasbro knows this: if you look closely at what they do, you see that what they sell is the SCRABBLE-brand crossword game. That is, according to them, the name of the game is 'crossword game,' just as the product marked as LEVI'S are jeans, not "levi's."
But even when the mark holder does everything right, the public can still wind up associating the trademark with the good itself. When a trademark can't denote the origin of goods, but merely describes the goods themselves, it has gone generic. TRAMPOLINE, ESCALATOR, and ELEVATOR are all good examples of this. THERMOS, KLEENEX, and XEROX are all perpetually on the knife's edge. SANKA was teetering for a while, but eventually people stopped calling all decaffeinated coffee "sanka," which revitalized the mark.
I bet that if you conducted a survey of board game players, you'd find that they overwhelmingly think that the game in question is called "scrabble," not "crossword game." If that's so, then the trademark is generic, and everyone is allowed to call their version of that game by that name. And in fact, a carefully-designed and implemented survey is precisely the sort of evidence that you would go into court with.
So merely showing that people think that the game on Scrabulous' web site is called SCRABBLE isn't enough to sink them. If those people think that the game is called SCRABBLE, whoever sells or provides it, then that's what will sink Hasbro instead.
No, you can't. Remember, a game is essentially its rules. You can copyright a description of those rules (maybe, it depends) but you cannot copyright the underlying rules themselves. The rules are a method for playing the game, you see, and that's expressly non-copyrightable subject matter, per 17 USC 102(b). Art associated with the game (e.g. the picture on the box, the shape of the pieces, etc.) can be copyrightable, but again, not to the extent that they're dictated by the rules.
Hasbro sued Kellogg for having a card matching game on their cereal boxes as part of a Finding Nemo promotion, saying it too closely resembled their Memory card game.
Got a link? I'd be interested to see what it was about, specifically.
Wizards of the Coast even has a patent
You can patent games -- it's just another method, after all -- but it requires that the rules are patentable. That means that they have to be novel and nonobvious. For whatever reason, it doesn't seem to happen that often. Besides, since patents expire relatively quickly, it doesn't matter in this case.
Well, that's not precisely correct. You can't copyright the rules of the game, and to the extent that the board's design is dictated by the rules, it too would not be copyrightable. This is dictated by the merger doctrine and the scenes a faire doctrine. So, for example, all the hideous art on the Candyland game board is copyrightable, because it doesn't absolutely have to be there. OTOH, a chess board (for the most common variant of chess) has to be 8 squares by 8 squares in size.
For Scrabble, basically everything on the working part of the board is dictated by the rules. You wouldn't want to copy the art on the sides, but there has to be a grid, there has to be the star in the center, and there have to be bonus squares in certain spots. The colors are a creative choice, but that's pretty thin for bringing suit.
I don't think that a case for copyright infringement of the game board is likely to succeed.
The breadth and length of protection granted must be whatever produces the greatest public benefit. It's entirely possible that this could mean long patents and short copyrights. Personally, though, I suspect that the optimal term for patents and for copyrights would be rather short by current standards. Long copyrights have more to do with authors and publishers lobbying for them, and no one lobbying for the public interest. At least in the patent field, competing manufacturers will work to keep terms short. In copyrights, any publisher that might publish public domain works is likely to prefer to publish copyrighted works, if he's big enough to be of any significance.
Well, the mechanism for enticing creation and publication is to make it more economically viable. There are other, 'natural' mechanisms too (e.g. fame, art-for-art's-sake, patronage, etc.), which are sometimes enough (see e.g. all works created before 1710, and many since).
To make a significant work takes many months.
That's not true. If we're measuring significant in terms of economic value (since that what you're trying to justify) it can take anywhere from a minute to decades. Plenty of things are made much faster, sometimes with the aid of drugs, or at least lots of coffee. 'On the Road' took three weeks to write. 'The Little Shop of Horrors' took two days to film (and ironically, Roger Corman didn't think the movie would ever make money beyond its initial release, so he never bothered to get a copyright for it). Marcel Duchamp once famously bought a urinal, signed his name to it, and put it in a show. Couldn't've taken more than minute of actual work. And let's not even think about daily newspapers. I'm sure the reporters didn't have months to write the majority of each day's edition.
To justify such an investment, there must be reasonable expectation of at least breaking even.
Ha! Authors are infamously optimistic. The vast majority of works never make anything at all. Of the remainder, the vast majority don't make much. There's a good reason that we have a stereotype of the starving artist living in a garret, never getting famous, never getting successful, never getting paid.
Besides, copyrights don't guarantee that a work will make money. They merely act as a lens, concentrating whatever money there is to be made into the hands of the copyright holder. If a work is a flop, then the copyright holder gets a large percentage of the nothing that the work is worth.
If it is my money then I should be able to give it to whomever.
So long as you're alive, sure. But the world belongs to the living. Once you snuff it, it becomes really questionable as to why you should be able to exert control over what were once your assets from beyond the grave. Particularly since no one can see the future, and your decisions, on average, are sure to be less wise than what a living person would have decided.
We abolished the fee tail. We've had the rule against perpetuities. So I don't mind so much constraining the freedom of decedents.
If you take my intellectual property, you take away my right to get money from you. When I create a work of art, I am given the right to ask you for money if you want to copy that work of art. When you "steal" it (or "pirate" it, or whatever kids call it these days), you take away my right to being paid for allowing you to enjoy it. I have that right because I've spent many years or even decades trying to create that piece of art.
No, you have that right only because we've chosen to give it to you in the first place. It isn't inherently yours. And the amount of effort you put into the work is totally irrelevant. At least in the US, the sweat of the brow theory is totally dead. That's why you can't copyright the white pages in the phone book. The sine qua non of a copyrightable work of authorship is that it is creative, original, and fixed in a tangible medium of expression.
Anyway, whether or not we choose to give you a right to turn around and exclude us from certain ways of enjoying your work is obviously going to be based on whether or not it benefits everyone else to give you that sort of veto power. Without others consenting to give you a copyright, all you're left with is the ability to choose whether or not to create the work (since you're no slave), and once created, whether or not to let someone else see it, or to destroy it instead.
We can surely say that authors are not entitled to copyrights, but nevertheless choose to grant copyrights to authors where it serves a public purpose to do so. Remember: copyrights are a government-granted monopoly. No one is entitled to those, but sometimes the best option is to hand them out, so long as it isn't merely a way for the few to profit at the expense of the many. Copyright can exist without being an entitlement; don't think that we have to be at either extreme.
Also, try being in a US citizen's shoes and see about every 10th post on/. marked +5 Insightful when someone who has never set foot on this land tells me various "The average american does...." or "The average american thinks..." like everyone is a poor, fat, uneducated slob who wants a free ride on someone else's back.
Yeah, the average American gets annoyed with those sorts of comments after a while (regardless of their veracity).
Have you ever seen a copyrighted piece of software challenged as not copyrightable because it's "too functional," or merely scenes à faire? I've never read of any such instance.
Sure. Look at the Altai test in Computer Associates International, Inc. v. Altai, Inc., 982 F2d 693, 702 (2d Cir. 1992). Copyright only protects creative elements of works; elements that must be expressed in a particular way (or where there is only a small set of possible ways) are not creative in nature.
If they're the same, shouldn't electrical engineers be able to get genuine copyright protection for their circuits? Why do they need sui generis protection in the form of mask works?
That would be the utility doctrine. A microchip is would be a sculptural work with inseparable functional elements. So while a piece of software would be protectable in non-chip form, the chips themselves could be freely copied, meaning that someone could then copy the software itself, in any form, so long as it was via copying a chip, and not some other fixation. Cf. pre-1990 copyright in architectural plans. You couldn't necessarily copy the plans, but you could measure a building built according to those plans, and then make your own plans.
But I believe that it's asinine - an absurd departure from the primary principle of copyright: that it protects "expressive" works.
Expressiveness is more about the intent and m.o. of the author, more than how easy it is for the audience to enjoy it. The programmer chose a particular set of instructions from the available universe of instructions, and arranged them in a particular manner that he chose. Compiling it doesn't change that. It's merely like writing a book, then summarizing it, then translating the summary from English to French and then writing it in morse code. It doesn't resemble the original version at a glance, but it is in fact the same thing, or at least a derivative work.
Incidentally, I'm tickled pink at the idea that I'm in the (unusual for me) position of defending the copyrightability of an entire class of works.
First, software inventors would remain free to charge whatever they liked for their labor, and for their products. A lack of software patents would merely mean that they would lack an artificial monopoly over certain functioning parts of their software.
Second, patents are only one economic incentive for software development and publishing. There are plenty of other economic and non-economic incentives that would remain. Look at text editors: some are free, some are sold. There are no significant patents in effect in that field. The text editor I like to use happens to be one of the commercial ones. The developer seems to be doing okay, despite the lack of patents and the competition.
Third, your analogy is severely broken. Patents are an artificial monopoly, just like any other government granted monopoly. Comcast would probably be unwilling to install all the infrastructure necessary to provide cable TV to everyone in your town if they had to face the possibility of Cablevision competing against them in the same town, and vice versa. In an unregulated situation, no one gets cable at all, because the costs to the provider are too great for the meager reward they'd get. In that case, where the market has failed, it may be appropriate for the government to step in and grant a monopoly to one of the providers so that they will finally have the incentive needed to spend on infrastructure. Essentially, it's a bit like a tax, in that the cable provider can demand that all subscribers pay more than the market price for the service they receive (i.e. everyone is overcharged) because there are no lower-priced alternatives for the potential customers to flee to, and so no reduced prices by means of competition. Granting a monopoly like that still wouldn't be a very good idea though. It must be limited in time so that after a few years the provider loses their monopoly but has already installed the infrastructure that is now open to everyone. That allows the government to either 1) take possession of the infrastructure (which would have been part of the deal for granting the monopoly earlier) and allow any provider to use it, or; 2) accept bids for any provider to step in and get a fresh monopoly to maintain and further improve the infrastructure, again funded by overcharging customers with no other options.
The vegetables thing therefore has nothing to do with hobby gardeners; it's about whether some farmer is willing to grow tomatoes even if he has to face competition from other farmers down the road who do the same thing. If the farmer is willing to do it, there is no need for a monopoly to encourage him to do it; he's doing it already! If no one is willing to grow tomatoes, and tomatoes are important enough, only then might a monopoly -- and remember that it's a regressive, use-funded, government granted subsidy -- be appropriate.
Hopefully you may have reconsidered your position. Unless you're on the far-right, and think that the government ought to impose taxes (of a sort) on everyone in order to redistribute the money to the greedy, but powerful few.;) For software patents, I say, let the market reign, and get rid of patents, which are just a form of government involvement.
To this end, the idea of "artistic expression" has been warped to a nonsensical extreme, covering any implementation of software - even if purely functional and utterly non-aesethetic (even if it's an invisible background process!)
Well, if it's too functional, then it's vulnerable to some attacks, such as the merger doctrine, or scenes à faire. But really, there is enough room for some level of creativity in writing code that it's usually not a big deal. Small bits of code -- getting input, modifying strings, etc. -- may not be creative themselves, but the overall piece of software assembled from all of these things very well can be. It's like a book: not one word is copyrightable by itself, but the whole is greater than the sum of its parts.
And while any source code should be just as copyrightable as other types of writing, it doesn't follow that compiled binaries executing the instructions of the source code somehow inherit the copyright coverage of the source code.
They certainly do. At most it is merely a derivative work, and personally I don't think that it's even that. Binaries are just the same as source code, from a copyright perspective, save that the binaries are the functional bits of the source reorganized in a manner that is convenient to the computer. Likewise, if I paint a painting, then scan it in to a computer, the graphic file will not be 100% the same, and will have been changed to be more computer friendly (e.g. composed of pixels, rather than a long list of paint chemicals and where they're located on the canvas with an amazing degree of precision). But it's still the same thing. Of course, that only applies to the part of the binary that originates from the source; other parts from libraries, or whatnot, will inherit those other copyrights instead.
Well, there are a few different genera of patents. Method patents (e.g. a method of turning straw into gold) are what software patents are a subset of. Compositions of matter (e.g. a new chemical with the formula XYZ) are what drugs consist of. Of course, in practice, an invention will often have a number of related inventions that accompany it. For example, if you invent a new drug that cures cancer, you would patent the drug itself, the method for making the drug, and the method for using the drug as a medicine. If someone else finds a method for making the drug by another, better, cheaper means, then that's all well and good, but your patents preclude them from doing so, or from using it medicinally, and their patent precludes you from using the new and improved manufacturing method. The two of you will have to come to an agreement, or else they will have to wait for your patents to run out. This is a fairly common situation, and usually the parties manage to work it out amongst themselves. Plus, patents are sometimes a little broader than they appear, in order to deter someone who would make a trivial change in order to avoid infringing were patents taken too literally. (E.g. to defeat the Compuserve GIF patent, imagine if someone XORed an image with 1, then undid it, and otherwise followed the patent)
So achieving the same result by a different method is fine, so long as the two methods are sufficiently different, and the patent holder hasn't anticipated what you do enough to have some other patent that interferes with your plans.
RSA is without a doubt, nonobvious (though it wasn't precisely novel, apparently). Nevertheless, that's not the point. Those just describe the subset of inventions that are patentable. Whether or not patents are granted at all has more to do with whether the inventor needs the incentive of a patent in order to invent, disclose, and bring to market, or whether he would do it regardless. I see no reason to pay someone to do something if they're willing to do it for free. Why then should the government grant a monopoly to an inventor if they don't actually require it? So far, this seems to be the case for software. If it changes in the future, I'm quite happy to revisit the issue. I don't have an ideological stance against software patents, I'm just a pragmatist.
I'd agree that disclosure is extremely important. However, I'm not sure that disclosure alone is enough of a reason to grant software patents.
First, because disclosure isn't enough to justify issuing patents. We don't grant patents for non-novel inventions, for example, even if people still have no idea how to practice them.
Second, because in the case of software, even though reverse engineering isn't as easy as it could be, it's far from impossible. Plus, of course, for most software patents, the invention has more to do with the idea than any given implementation. The patents are often so broad, though, as to effectively protect the idea, and not a narrower invention. So even if the details are obscured, competent programmers aren't impaired because the idea to even offer a particular feature usually isn't obscured; in fact, it's used as a selling point. They can figure out a way to implement it themselves.
Third, even if we didn't offer patents for medicines, we'd still require disclosure as part of an FDA approval. While we obviously can't make disclosure a requirement for publishing software, we can make it a condition for getting a copyright on that software! After all, similarly to patents, copyright seeks to have copyrighted works enter the public domain so that the works can be freely copied, altered, distributed, used, etc. As we know, this is hard to do when all that the public can possibly get are closed binaries. So, we require developers to deposit a full copy of their source, along with whatever other supplemental material the Copyright Office might mandate (e.g. notes about how it was compiled, what it runs on, comments, etc.) if they want a copyright. If they don't want to disclose the source, they just don't get a copyright. They're still free to publish the binaries, or whatever. And the source isn't open; like any other copyrighted work, while you might be allowed to read it, you wouldn't be allowed to copy it whilst it is copyrighted. DRM can also be dealt with by legislating that any work which the copyright holder uses, or authorizes the use of, DRM in conjunction with, enters the public domain, and that circumventing DRM is legal (and in fact, so desirable, that some modest federal grants might be issued to encourage this). None of this prevents an author from keeping software totally closed and hidden, or from using DRM, etc., but it does fail to encourage it; encouragement should be reserved only for authors who play by the rules, as it were.
There's really no problem at all. The thing is, there's no requirement that a piece of software be protected only under one legal regime. The regimes do not overlap, but they can each protect different aspects of the same software.
In copyright, there is the idea/expression dichotomy, which results in copyright protecting the implementation of an idea, but not the underlying idea itself. In the case of software, this would mean that all of the algorithms of a program would be uncopyrightable, but the way in which they were written would be copyrightable. So long as you write them a different way (or write them the same way independently, without having copied; or write them the same way due to some functional consideration, such as the dictates of efficiency, of a particular platform, language, etc.) you're fine. For tangible objects there is also the utility doctrine, which prevents the working parts of machines, for example, from being copyrightable.
Patents, OTOH, protect inventions, however they happen to be embodied. So if you invented some bit of functionality, the patent would apply regardless of whether someone copied what you did, or independently came up with it. It would apply whether their code was bit-for-bit the same, or whether they implemented the same invention in a totally different way which still fell under the patent. Of course, if they can achieve the same end result by a different method, then that's not infringing.
So in sum, copyrights are used to prevent people from copying particular bits of source or binaries, but patents are used to prevent people from making identically functioning software, regardless of copying.
Software patents are bad because they're so wasteful, not because they're ill-defined. They're not incentivizing invention, disclosure, and bringing-to-market in the computing field, and are probably hindering it. Since patents are meant to cause more of those things, at the least public cost, the best option for software would be to not offer patents. In the future, we can reexamine the field to see if the natural incentives present are no longer sufficient, and the artificial incentive of patents should be added. But right now, it's a bad idea. Ditto for business methods. That's also such a naturally fertile field that we don't need patents.
The purpose of patents is to incentivize the invention, disclosure, and bringing-to-market of novel, non-obvious inventions which would not have been otherwise. It's not a reward for a job well done, or a particularly tricky bit of inventing. I suspect that Rivest, Shamir, and Adleman would have invented, disclosed, and brought-to-market RSA even if patents were not available to them (which was the case everywhere else in the world, in fact). In fact, this is probably true for the vast majority of inventors in the computer field.
If they're willing to work without that incentive, it is wasteful to grant it to them anyway. It doesn't matter whether the invention was on the cusp of becoming obvious to everyone, it matters whether or not the invention would have come about but-for the possibility of patenting it.
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I don't accept the premise. When people refer to Scrabble, they are referring to the Hasbro property.
Well, ultimately, that's a question of fact. Neither of us can know, right now, what people mean. You think that the relevant segment of the public still finds the SCRABBLE mark distinctive. I think that they regard the mark as generic. Proper survey evidence is necessary to settle this question.
Almost all games have variations offered by competitors--in fact, that's what drives the market.
Right, that's why it's so impossible to find a chess set these days; with the game being generic and all, no one wants to be in that market. Oh, wait, actually chess sets are common as dirt. And there's practically no variation at all in gameplay. In fact, the only copyrightable bits are those which are unnecessary to the playing of the game: the shape of the pieces, and purely decorative parts of the board.
To foster progress and innovation, not fund a lazy freerider.
To let the public enjoy the beneficial effects of market competition is another reason for the public domain, actually. So long as a work is copyrighted, the copyright holder will use his monopoly to charge above-market-value prices for the work. Once the copyright expires, the work becomes a commodity, and competitors can drive the price down to around the marginal value per copy, which makes the work accessible for a greater part of the public. I can go out and buy a cheap paperback copy of Hamlet, or I can spring for a fancy leatherbound edition, or, these days, I can just download it for free. The public is better served by this than by having only one source that can arbitrarily set prices as high as they please.
So there's nothing wrong with lazy free riders. Direct competitors -- the ones who offer the same product -- are just what we want in order to restore the work to the free market once the legal monopoly is over with (assuming that it ever existed). We see the same thing in the pharmaceutical market with drugs that have fallen out of patent and are being made generically. Or are you upset that Bayer faces competition on the aspirin front?
The rules do not extend to the board, the distribution of pieces, or the values of the scoring.
Really? Why? Most games' rules deal extensively with the board, the number of and type of pieces, and the scoring. If I try to play in tournament scrabble with a bag full of blank tiles, and I claim that they are all worth 10 points each, and the board I bring along has a dozen quadruple word score squares, I bet they're going to say that my set is against the rules.
The actual rules of the game are more than what Hasbro has printed on the little paper insert. That expression of the rules assumes the standard board, tile distribution, and scores. Implicit or express, a rule is a rule.
No, gameplay is exactly the same. You are conflating strategy and outcome with gameplay.
They're all connected. Change the gameplay, and the others follow suit.
Since the game board is essential to Hasbro's game and constitutes the lion's share of the copyright scope, infringement by total reproduction of that copyright cannot be de minimis.
It can be if virtually nothing about the game board is copyrightable to begin with. We're basically looking at the Altai test here: there can only be an infringement action for the parts of the board that are copyrightable. Uncopyrightable parts of the board can be copied freely, even if that's the lion's share. In this case, of the part of the board within the playing area, the only possibly copyrightable bits are the color choices for the scoring squares. A case solely founded on copying those (since copying the rest is lawful) doesn't seem like a winner. That the tiny scrap of copyrightable subject matter was totally copied doesn't prevent that copying from nevertheless being de minimis if the scrap was tiny enough. Apparently, Hasbro should have decorated the game more. Who knows, mayb
Scrabulous isn't saying "play our scrabble game"--they're intentionally exploiting the Scrabble brand to attract customers. That's a very different process than the consumers' widespread use genericizing one vendor's mark.
If customers have already come to genericize the mark, then Scrabulous is free to act. And one of the things they can do is to create their own mark which is based upon the generic mark. In this case, I'd say that it is around the border of suggestive and descriptive. They probably would've been smarter to make up a fanciful mark, and advertise it as [MARK]-brand scrabble game, if they nevertheless wanted to mention scrabble somehow. If I only had a nickel for every time people were so reckless.
The mark is ipso facto distinctive if there are no competing marks.
No, it's not, as the Shredded Wheat case teaches us:
A mark is generic if it is so perceived by the public; competition doesn't matter. In fact, I'd say that the presence of competition is likely to keep a mark distinctive. Businesses get lazy about their marks in the absence of competition, and without competition, the public doesn't see the good or service marketed in conjunction with a different mark, leading to too much association of the mark with that which is marked.
Of course, things don't come to a head until some competitor decides to make use of the mark.
Scrabulous isn't a competitor, it's a reproducer.
I see no difference. Competition doesn't require innovation.
It has not been genericized, because when people refer to Scrabble, they are not referring to word-tile games, they are referring to Scrabble, one particular, proprietary variant.
If the game is not proprietary, however, would you agree that people are therefore referring to the game itself, rather than the version of the game sold by Hasbro as distinguished from identical versions of the game from other sources? If so, then it is generic. It's only distinctive if people are referring to Hasbro's game, rather than to identical games from other sources.
The Scrabble board layout and scoring system are again, arbitrary and proprietary. There is no legitimate need to reproduce the particulars of the Scrabble board in order to replicate the game play.
Au contraire. In order to perfectly replicate the gameplay, the layout and scoring system must be copied. Consider: if you wrote down the moves of the game, as is done in chess, and replayed that game on two boards, one with Hasbro's layout and scoring system, and another one which was different, the outcome of the two games would be different. Perhaps it would be so different that a different player would have won. If these things changed, then players would want to adopt different play strategies (e.g. what if the triple word scores were closer together, that you might be able to get two fresh ones on a single play?). Clearly, the gameplay is greatly effected by these things. You cannot possibly play the same Hasbro variant of the game without them,
I'm not sure whether the rules explicitly mention a star
Just because it's not in the written copy of the rules as promulgated by Hasbro, doesn't mean that it isn't a rule. All the boards Hasbro makes are identical in layout, and the written rules assume that you'll use one of those boards. Thus, the implicit rule is that that is how the board is arranged. If it didn't matter, why the uniformity? Golf courses are not all identical, so that's a game where the rules don't specify a particular layout, but plenty of other games do, e.g. football. That there are variant rules doesn't mean that the more standard rules are specially protected either. The 'standard' rules for monopoly involve nothing happening on Free Parking, but many variants have that space do something; they're all unprotected.
Besides, the main point is that the arrangement of spaces is a part of the method for playing the game, rather than being a mere decoration that isn't in some way involved with the gameplay. Methods are not copyrightable. That there are alternative methods just makes them uncopyrightable too. Creativity and originality don't matter when the subject matter is not copyrightable in the first place. Methods are only patentable, and any scrabble patent has long since expired. If Hasbro wants to monopolize the method of playing the game, they'll need to invent a whole new set of patentable rules (i.e. novel and nonobvious) and get a patent on them. Whatever game that is, it won't be scrabble, though; we already have scrabble.
Again, this is dependent on the game itself being generic.
Trademarks don't protect the marked good or service. If Levi's sells LEVI'S-brand blue jeans, that doesn't prevent someone else from selling blue jeans as well. If LEVI'S becomes synonymous with blue jeans in the minds of customers, then competitors can use that mark as well, it having become generic.
The SCRABBLE mark can't be used to stop someone from producing a game that is functionally identical in every respect to the already-marked game. The most that the mark is good for is making competitors choose a name that is not confusingly similar. But if the mark has become synonymous with the game itself, then the mark is no longer protected, and competitors can use it.
Xerox has competitors. Original games do not. You never saw the shelves of stores lined with games with that board layout, seven letters, where an X is worth 8 points. People don't associate crossword games with Scrabble. They associate Scrabble with Scrabble. You have to have competitors in order to have a generic effect.
No, customer perception is everything. It doesn't matter whether or not there is competition, what matters is whether customers find the mark distinctive or not. And besides, there is competition: Scrabulous.
A good example of this would be the Shredded Wheat case in the 1930's. Shredded wheat cereal had originally been the subject of a patent, but it had expired. Nevertheless, for some time, no one other than the manufacturer, National Biscuit, bothered to make it. Eventually, Kellog's started to, was sued for trademark infringement, and won, on the basis that the SHREDDED WHEAT mark was generic. That the mark merely described the product, and so was fair game for anyone to use, rather than being a trademark indicating that a particular batch of so-marked cereal was made by National Biscuit, rather than someone else. From that case:
Again, if people think the game itself is called 'Scrabble' then there is no trademark. The game-playing public has to actually think that the game is the SCRABBLE-brand version of a particular crossword game, and thus that all SCRABBLE-branded products share a common source. If it's just Hasbro's version of the scrabble game, and other people may or may not have their own versions of the scrabble game, then no trademark.
There's no rule that says it must be 15 by 15, nor do the rules specify the arrangement of pink and blue squares (or their effect).
Then how come the boards are all uniform in the number of squares and the arrangement and effect of squares? Golf is a game where the courses are allowed to vary significantly (and miniature golf, even more so). Scrabble is nothing like that. If there were no rule, we'd surely have seen some variation, because it wouldn't matter.
It is not the entertainment product of a single company, produced and marketed specifically for years by a corporate effort.
So? That's totally irrelevant as to the copyrightability of the rules. Game rules are a method for playing the game, and methods are not ever copyrightable. Period. If Hasbro wanted a p
People don't think that all crossword games are Scrabble.
No, not all crossword games, but I think that most people believe that the game with the SCRABBLE mark attached is the game of scrabble, and not merely a SCRABBLE-brand crossword game. Trademarks are really interesting in that if your trademark is really successful, that success is likely to backfire, as your customers begin to associate the good or service itself with the mark. It's an old story. Just look at the massive efforts Xerox has had to undertake for decades to try to avoid this (and it's never been tested, so no one knows if they have succeeded). Scrabble correctly marks their product, but other than that, I don't think they've engaged in the right sort of customer education to keep their mark strong and distinctive, and I think they'll wind up paying the price for it.
How you can find an arbitrary board arrangement and an arbitrary scoring system to be insufficiently original is puzzling, if you'll pardon the pun.
I didn't say it wasn't original, it's just not copyrightable. The rules dictate the arrangement of the board and the scoring system. To play the game in question, you have to have a 15 by 15 grid, with certain specific squares that have certain specific attributes. You can't mix them up without having different rules. Think of basketball: you can't arbitrarily swap the 2-point and 3-point scoring areas while still adhering to the rules; the rules control the arrangement of the playing area. Ditto, the scoring system.
The most I see that's copyrightable here are the color choices on the board. I don't think that the arrangement of letter and point value on the tiles would survive the merger doctrine, however. And since the Scrabulous board doesn't copy the non-grid areas of the regular scrabble board, those parts don't matter. If all they've got on the copyright front are the color choices for the various bonus squares, that seems extremely weak to me. Could be de minimis.
It's quite easy to paint the picture that they're exploiting what they see as a weak mark if they take up your line of reasoning, intentionally supplanting, rather than innovating, improving, or adapting.
If the mark is generic, as I suggest, then it doesn't matter what the motives of the Scrabulous folks are. They're perfectly within their rights to use a non-distinctive mark regardless of the effect on Hasbro. Remember, while copyrights and patents are interested in increasing the scope of human knowledge, trademarks are not. Trademarks don't care about novelty, originality, creativity, etc. It's more practical than that.
An interesting thing about game rules is that to the extent that there is only one, or are only a few, reasonable ways to express the rules, then they wouldn't be copyrightable, lest a copyright on the expression effectively merge with the idea, preventing other people from using it. This has come up in game rule cases before.
It is not trivial -- the layout of the board is critical to the mechanics of the game.
Why do you imagine copyright law can't apply to it? What makes the design of a game board
special?
You've nailed the problem right there. If the rules dictate the design of the board, then the board is not copyrightable, lest the copyright prevent other people from using the public domain game rules. It's a very open-and-shut application of the merger doctrine. Scenes a faire would get you to the same result as well.
Irrelevant art on a game board -- think of Candyland -- is certainly copyrightable, because it doesn't have a thing to do with the game mechanics. Necessary art on a game board -- think of chess -- is not.
This means that people can play Scrabble from a source that is not Scrabble.
And if people think the game is called SCRABBLE, rather than that the game is called 'crossword game,' this particular one being from the source associated with the SCRABBLE trademark, then the mark is generic. And hey, it looks like you just did that right there!
The SCRABBLE trademark is very weak, if viable at all. The copyright in the board and piece art seems likewise. Hasbro has their work cut out for them.
But trademarks do suffer from genericide. I think that this has happened in the case of SCRABBLE. Remember, the sine qua non of trademarks is that they denote that all so-marked goods or services share a common origin; they do not, however, denote the name or type of product which is marked. Hasbro knows this: if you look closely at what they do, you see that what they sell is the SCRABBLE-brand crossword game. That is, according to them, the name of the game is 'crossword game,' just as the product marked as LEVI'S are jeans, not "levi's."
But even when the mark holder does everything right, the public can still wind up associating the trademark with the good itself. When a trademark can't denote the origin of goods, but merely describes the goods themselves, it has gone generic. TRAMPOLINE, ESCALATOR, and ELEVATOR are all good examples of this. THERMOS, KLEENEX, and XEROX are all perpetually on the knife's edge. SANKA was teetering for a while, but eventually people stopped calling all decaffeinated coffee "sanka," which revitalized the mark.
I bet that if you conducted a survey of board game players, you'd find that they overwhelmingly think that the game in question is called "scrabble," not "crossword game." If that's so, then the trademark is generic, and everyone is allowed to call their version of that game by that name. And in fact, a carefully-designed and implemented survey is precisely the sort of evidence that you would go into court with.
So merely showing that people think that the game on Scrabulous' web site is called SCRABBLE isn't enough to sink them. If those people think that the game is called SCRABBLE, whoever sells or provides it, then that's what will sink Hasbro instead.
You can copyright a game.
No, you can't. Remember, a game is essentially its rules. You can copyright a description of those rules (maybe, it depends) but you cannot copyright the underlying rules themselves. The rules are a method for playing the game, you see, and that's expressly non-copyrightable subject matter, per 17 USC 102(b). Art associated with the game (e.g. the picture on the box, the shape of the pieces, etc.) can be copyrightable, but again, not to the extent that they're dictated by the rules.
Hasbro sued Kellogg for having a card matching game on their cereal boxes as part of a Finding Nemo promotion, saying it too closely resembled their Memory card game.
Got a link? I'd be interested to see what it was about, specifically.
Wizards of the Coast even has a patent
You can patent games -- it's just another method, after all -- but it requires that the rules are patentable. That means that they have to be novel and nonobvious. For whatever reason, it doesn't seem to happen that often. Besides, since patents expire relatively quickly, it doesn't matter in this case.
Well, that's not precisely correct. You can't copyright the rules of the game, and to the extent that the board's design is dictated by the rules, it too would not be copyrightable. This is dictated by the merger doctrine and the scenes a faire doctrine. So, for example, all the hideous art on the Candyland game board is copyrightable, because it doesn't absolutely have to be there. OTOH, a chess board (for the most common variant of chess) has to be 8 squares by 8 squares in size.
For Scrabble, basically everything on the working part of the board is dictated by the rules. You wouldn't want to copy the art on the sides, but there has to be a grid, there has to be the star in the center, and there have to be bonus squares in certain spots. The colors are a creative choice, but that's pretty thin for bringing suit.
I don't think that a case for copyright infringement of the game board is likely to succeed.
That's not a good enough reason.
The breadth and length of protection granted must be whatever produces the greatest public benefit. It's entirely possible that this could mean long patents and short copyrights. Personally, though, I suspect that the optimal term for patents and for copyrights would be rather short by current standards. Long copyrights have more to do with authors and publishers lobbying for them, and no one lobbying for the public interest. At least in the patent field, competing manufacturers will work to keep terms short. In copyrights, any publisher that might publish public domain works is likely to prefer to publish copyrighted works, if he's big enough to be of any significance.
Well, the mechanism for enticing creation and publication is to make it more economically viable. There are other, 'natural' mechanisms too (e.g. fame, art-for-art's-sake, patronage, etc.), which are sometimes enough (see e.g. all works created before 1710, and many since).
To make a significant work takes many months.
That's not true. If we're measuring significant in terms of economic value (since that what you're trying to justify) it can take anywhere from a minute to decades. Plenty of things are made much faster, sometimes with the aid of drugs, or at least lots of coffee. 'On the Road' took three weeks to write. 'The Little Shop of Horrors' took two days to film (and ironically, Roger Corman didn't think the movie would ever make money beyond its initial release, so he never bothered to get a copyright for it). Marcel Duchamp once famously bought a urinal, signed his name to it, and put it in a show. Couldn't've taken more than minute of actual work. And let's not even think about daily newspapers. I'm sure the reporters didn't have months to write the majority of each day's edition.
To justify such an investment, there must be reasonable expectation of at least breaking even.
Ha! Authors are infamously optimistic. The vast majority of works never make anything at all. Of the remainder, the vast majority don't make much. There's a good reason that we have a stereotype of the starving artist living in a garret, never getting famous, never getting successful, never getting paid.
Besides, copyrights don't guarantee that a work will make money. They merely act as a lens, concentrating whatever money there is to be made into the hands of the copyright holder. If a work is a flop, then the copyright holder gets a large percentage of the nothing that the work is worth.
If it is my money then I should be able to give it to whomever.
So long as you're alive, sure. But the world belongs to the living. Once you snuff it, it becomes really questionable as to why you should be able to exert control over what were once your assets from beyond the grave. Particularly since no one can see the future, and your decisions, on average, are sure to be less wise than what a living person would have decided.
We abolished the fee tail. We've had the rule against perpetuities. So I don't mind so much constraining the freedom of decedents.
Besides, what are they going to do? Rot at me? ;)
If you take my intellectual property, you take away my right to get money from you. When I create a work of art, I am given the right to ask you for money if you want to copy that work of art. When you "steal" it (or "pirate" it, or whatever kids call it these days), you take away my right to being paid for allowing you to enjoy it. I have that right because I've spent many years or even decades trying to create that piece of art.
No, you have that right only because we've chosen to give it to you in the first place. It isn't inherently yours. And the amount of effort you put into the work is totally irrelevant. At least in the US, the sweat of the brow theory is totally dead. That's why you can't copyright the white pages in the phone book. The sine qua non of a copyrightable work of authorship is that it is creative, original, and fixed in a tangible medium of expression.
Anyway, whether or not we choose to give you a right to turn around and exclude us from certain ways of enjoying your work is obviously going to be based on whether or not it benefits everyone else to give you that sort of veto power. Without others consenting to give you a copyright, all you're left with is the ability to choose whether or not to create the work (since you're no slave), and once created, whether or not to let someone else see it, or to destroy it instead.
That's a little black and white, don't you think?
We can surely say that authors are not entitled to copyrights, but nevertheless choose to grant copyrights to authors where it serves a public purpose to do so. Remember: copyrights are a government-granted monopoly. No one is entitled to those, but sometimes the best option is to hand them out, so long as it isn't merely a way for the few to profit at the expense of the many. Copyright can exist without being an entitlement; don't think that we have to be at either extreme.
Also, try being in a US citizen's shoes and see about every 10th post on /. marked +5 Insightful when someone who has never set foot on this land tells me various "The average american does...." or "The average american thinks..." like everyone is a poor, fat, uneducated slob who wants a free ride on someone else's back.
Yeah, the average American gets annoyed with those sorts of comments after a while (regardless of their veracity).
Have you ever seen a copyrighted piece of software challenged as not copyrightable because it's "too functional," or merely scenes à faire? I've never read of any such instance.
Sure. Look at the Altai test in Computer Associates International, Inc. v. Altai, Inc., 982 F2d 693, 702 (2d Cir. 1992). Copyright only protects creative elements of works; elements that must be expressed in a particular way (or where there is only a small set of possible ways) are not creative in nature.
If they're the same, shouldn't electrical engineers be able to get genuine copyright protection for their circuits? Why do they need sui generis protection in the form of mask works?
That would be the utility doctrine. A microchip is would be a sculptural work with inseparable functional elements. So while a piece of software would be protectable in non-chip form, the chips themselves could be freely copied, meaning that someone could then copy the software itself, in any form, so long as it was via copying a chip, and not some other fixation. Cf. pre-1990 copyright in architectural plans. You couldn't necessarily copy the plans, but you could measure a building built according to those plans, and then make your own plans.
But I believe that it's asinine - an absurd departure from the primary principle of copyright: that it protects "expressive" works.
Expressiveness is more about the intent and m.o. of the author, more than how easy it is for the audience to enjoy it. The programmer chose a particular set of instructions from the available universe of instructions, and arranged them in a particular manner that he chose. Compiling it doesn't change that. It's merely like writing a book, then summarizing it, then translating the summary from English to French and then writing it in morse code. It doesn't resemble the original version at a glance, but it is in fact the same thing, or at least a derivative work.
Incidentally, I'm tickled pink at the idea that I'm in the (unusual for me) position of defending the copyrightability of an entire class of works.
I'm afraid you've misunderstood my position.
First, software inventors would remain free to charge whatever they liked for their labor, and for their products. A lack of software patents would merely mean that they would lack an artificial monopoly over certain functioning parts of their software.
Second, patents are only one economic incentive for software development and publishing. There are plenty of other economic and non-economic incentives that would remain. Look at text editors: some are free, some are sold. There are no significant patents in effect in that field. The text editor I like to use happens to be one of the commercial ones. The developer seems to be doing okay, despite the lack of patents and the competition.
Third, your analogy is severely broken. Patents are an artificial monopoly, just like any other government granted monopoly. Comcast would probably be unwilling to install all the infrastructure necessary to provide cable TV to everyone in your town if they had to face the possibility of Cablevision competing against them in the same town, and vice versa. In an unregulated situation, no one gets cable at all, because the costs to the provider are too great for the meager reward they'd get. In that case, where the market has failed, it may be appropriate for the government to step in and grant a monopoly to one of the providers so that they will finally have the incentive needed to spend on infrastructure. Essentially, it's a bit like a tax, in that the cable provider can demand that all subscribers pay more than the market price for the service they receive (i.e. everyone is overcharged) because there are no lower-priced alternatives for the potential customers to flee to, and so no reduced prices by means of competition. Granting a monopoly like that still wouldn't be a very good idea though. It must be limited in time so that after a few years the provider loses their monopoly but has already installed the infrastructure that is now open to everyone. That allows the government to either 1) take possession of the infrastructure (which would have been part of the deal for granting the monopoly earlier) and allow any provider to use it, or; 2) accept bids for any provider to step in and get a fresh monopoly to maintain and further improve the infrastructure, again funded by overcharging customers with no other options.
The vegetables thing therefore has nothing to do with hobby gardeners; it's about whether some farmer is willing to grow tomatoes even if he has to face competition from other farmers down the road who do the same thing. If the farmer is willing to do it, there is no need for a monopoly to encourage him to do it; he's doing it already! If no one is willing to grow tomatoes, and tomatoes are important enough, only then might a monopoly -- and remember that it's a regressive, use-funded, government granted subsidy -- be appropriate.
Hopefully you may have reconsidered your position. Unless you're on the far-right, and think that the government ought to impose taxes (of a sort) on everyone in order to redistribute the money to the greedy, but powerful few. ;) For software patents, I say, let the market reign, and get rid of patents, which are just a form of government involvement.
To this end, the idea of "artistic expression" has been warped to a nonsensical extreme, covering any implementation of software - even if purely functional and utterly non-aesethetic (even if it's an invisible background process!)
Well, if it's too functional, then it's vulnerable to some attacks, such as the merger doctrine, or scenes à faire. But really, there is enough room for some level of creativity in writing code that it's usually not a big deal. Small bits of code -- getting input, modifying strings, etc. -- may not be creative themselves, but the overall piece of software assembled from all of these things very well can be. It's like a book: not one word is copyrightable by itself, but the whole is greater than the sum of its parts.
And while any source code should be just as copyrightable as other types of writing, it doesn't follow that compiled binaries executing the instructions of the source code somehow inherit the copyright coverage of the source code.
They certainly do. At most it is merely a derivative work, and personally I don't think that it's even that. Binaries are just the same as source code, from a copyright perspective, save that the binaries are the functional bits of the source reorganized in a manner that is convenient to the computer. Likewise, if I paint a painting, then scan it in to a computer, the graphic file will not be 100% the same, and will have been changed to be more computer friendly (e.g. composed of pixels, rather than a long list of paint chemicals and where they're located on the canvas with an amazing degree of precision). But it's still the same thing. Of course, that only applies to the part of the binary that originates from the source; other parts from libraries, or whatnot, will inherit those other copyrights instead.
Well, there are a few different genera of patents. Method patents (e.g. a method of turning straw into gold) are what software patents are a subset of. Compositions of matter (e.g. a new chemical with the formula XYZ) are what drugs consist of. Of course, in practice, an invention will often have a number of related inventions that accompany it. For example, if you invent a new drug that cures cancer, you would patent the drug itself, the method for making the drug, and the method for using the drug as a medicine. If someone else finds a method for making the drug by another, better, cheaper means, then that's all well and good, but your patents preclude them from doing so, or from using it medicinally, and their patent precludes you from using the new and improved manufacturing method. The two of you will have to come to an agreement, or else they will have to wait for your patents to run out. This is a fairly common situation, and usually the parties manage to work it out amongst themselves. Plus, patents are sometimes a little broader than they appear, in order to deter someone who would make a trivial change in order to avoid infringing were patents taken too literally. (E.g. to defeat the Compuserve GIF patent, imagine if someone XORed an image with 1, then undid it, and otherwise followed the patent)
So achieving the same result by a different method is fine, so long as the two methods are sufficiently different, and the patent holder hasn't anticipated what you do enough to have some other patent that interferes with your plans.
RSA is without a doubt, nonobvious (though it wasn't precisely novel, apparently). Nevertheless, that's not the point. Those just describe the subset of inventions that are patentable. Whether or not patents are granted at all has more to do with whether the inventor needs the incentive of a patent in order to invent, disclose, and bring to market, or whether he would do it regardless. I see no reason to pay someone to do something if they're willing to do it for free. Why then should the government grant a monopoly to an inventor if they don't actually require it? So far, this seems to be the case for software. If it changes in the future, I'm quite happy to revisit the issue. I don't have an ideological stance against software patents, I'm just a pragmatist.
I'd agree that disclosure is extremely important. However, I'm not sure that disclosure alone is enough of a reason to grant software patents.
First, because disclosure isn't enough to justify issuing patents. We don't grant patents for non-novel inventions, for example, even if people still have no idea how to practice them.
Second, because in the case of software, even though reverse engineering isn't as easy as it could be, it's far from impossible. Plus, of course, for most software patents, the invention has more to do with the idea than any given implementation. The patents are often so broad, though, as to effectively protect the idea, and not a narrower invention. So even if the details are obscured, competent programmers aren't impaired because the idea to even offer a particular feature usually isn't obscured; in fact, it's used as a selling point. They can figure out a way to implement it themselves.
Third, even if we didn't offer patents for medicines, we'd still require disclosure as part of an FDA approval. While we obviously can't make disclosure a requirement for publishing software, we can make it a condition for getting a copyright on that software! After all, similarly to patents, copyright seeks to have copyrighted works enter the public domain so that the works can be freely copied, altered, distributed, used, etc. As we know, this is hard to do when all that the public can possibly get are closed binaries. So, we require developers to deposit a full copy of their source, along with whatever other supplemental material the Copyright Office might mandate (e.g. notes about how it was compiled, what it runs on, comments, etc.) if they want a copyright. If they don't want to disclose the source, they just don't get a copyright. They're still free to publish the binaries, or whatever. And the source isn't open; like any other copyrighted work, while you might be allowed to read it, you wouldn't be allowed to copy it whilst it is copyrighted. DRM can also be dealt with by legislating that any work which the copyright holder uses, or authorizes the use of, DRM in conjunction with, enters the public domain, and that circumventing DRM is legal (and in fact, so desirable, that some modest federal grants might be issued to encourage this). None of this prevents an author from keeping software totally closed and hidden, or from using DRM, etc., but it does fail to encourage it; encouragement should be reserved only for authors who play by the rules, as it were.
There's really no problem at all. The thing is, there's no requirement that a piece of software be protected only under one legal regime. The regimes do not overlap, but they can each protect different aspects of the same software.
In copyright, there is the idea/expression dichotomy, which results in copyright protecting the implementation of an idea, but not the underlying idea itself. In the case of software, this would mean that all of the algorithms of a program would be uncopyrightable, but the way in which they were written would be copyrightable. So long as you write them a different way (or write them the same way independently, without having copied; or write them the same way due to some functional consideration, such as the dictates of efficiency, of a particular platform, language, etc.) you're fine. For tangible objects there is also the utility doctrine, which prevents the working parts of machines, for example, from being copyrightable.
Patents, OTOH, protect inventions, however they happen to be embodied. So if you invented some bit of functionality, the patent would apply regardless of whether someone copied what you did, or independently came up with it. It would apply whether their code was bit-for-bit the same, or whether they implemented the same invention in a totally different way which still fell under the patent. Of course, if they can achieve the same end result by a different method, then that's not infringing.
So in sum, copyrights are used to prevent people from copying particular bits of source or binaries, but patents are used to prevent people from making identically functioning software, regardless of copying.
Software patents are bad because they're so wasteful, not because they're ill-defined. They're not incentivizing invention, disclosure, and bringing-to-market in the computing field, and are probably hindering it. Since patents are meant to cause more of those things, at the least public cost, the best option for software would be to not offer patents. In the future, we can reexamine the field to see if the natural incentives present are no longer sufficient, and the artificial incentive of patents should be added. But right now, it's a bad idea. Ditto for business methods. That's also such a naturally fertile field that we don't need patents.
I disagree.
The purpose of patents is to incentivize the invention, disclosure, and bringing-to-market of novel, non-obvious inventions which would not have been otherwise. It's not a reward for a job well done, or a particularly tricky bit of inventing. I suspect that Rivest, Shamir, and Adleman would have invented, disclosed, and brought-to-market RSA even if patents were not available to them (which was the case everywhere else in the world, in fact). In fact, this is probably true for the vast majority of inventors in the computer field.
If they're willing to work without that incentive, it is wasteful to grant it to them anyway. It doesn't matter whether the invention was on the cusp of becoming obvious to everyone, it matters whether or not the invention would have come about but-for the possibility of patenting it.