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EU Court Adviser Says Software Ideas Can't Be Copyrighted 196

Posted by timothy
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."
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EU Court Adviser Says Software Ideas Can't Be Copyrighted

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  • Finally! (Score:2, Interesting)

    by pnewhook (788591)
    Some common sense! You can't copyright software on its own! It must be part of a device that you are copyrighting.
    • Re:Finally! (Score:4, Interesting)

      by dingen (958134) on Tuesday November 29, 2011 @01:25PM (#38204018)
      So drawing a box or moving a cursor *on a PC* should be applicable to copyright?
    • by Anonymous Coward

      A kink in your armor, you British Scum.

    • Re:Finally! (Score:5, Informative)

      by riverat1 (1048260) on Tuesday November 29, 2011 @01:39PM (#38204206)

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

      • Re:Finally! (Score:5, Insightful)

        by bky1701 (979071) on Tuesday November 29, 2011 @03:45PM (#38205862) Homepage
        "Copyright is for protecting written information."

        Copyright is for controlling the distribution of information. The only protection for information is duplication and distrubition.
        • Re:Finally! (Score:4, Insightful)

          by PopeRatzo (965947) * on Tuesday November 29, 2011 @03:55PM (#38205988) Homepage Journal

          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?

        • by riverat1 (1048260)

          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.

        • by jbengt (874751)

          "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.

    • by ackthpt (218170)

      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.

    • 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 conclu
    • by Hentes (2461350)

      You can copyright a piece of software in the EU as well, what you can't do is copyright an unimplemented "idea" .

  • by Dark$ide (732508) on Tuesday November 29, 2011 @01:24PM (#38203994) Journal
    Dear EU,

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

    Thanks.

    • by Nerdfest (867930) on Tuesday November 29, 2011 @01:30PM (#38204068)
      His name may make them a little suspicious.
    • by NoNonAlphaCharsHere (2201864) on Tuesday November 29, 2011 @01:48PM (#38204316)

      Dear EU,

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

      Thanks

    • by kawabago (551139) on Tuesday November 29, 2011 @01:51PM (#38204346)
      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.
      • by Pope (17780) on Tuesday November 29, 2011 @02:09PM (#38204590)

        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.

        • by Talderas (1212466)

          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!

        • by robot256 (1635039) on Tuesday November 29, 2011 @02:19PM (#38204738)
          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.
          • by lgw (121541)

            That problem is actually self-solving. It's just another attitude cycle, one that plagues us every generation or so. Unfortunately, we had these damn bailots this time around, which kept it going a bit longer than normal, but the "money can be created out of nothing" folks are finally getting layed off like crazy, all the bubbles are deflating, and reality is inevitably asserting itself. As the pain grows, the attitude will vanish, at least until the next generation of MBAs is loosed upon the world.

          • But money *is* created out of nothing. The modern international system is based on fiat money [wikipedia.org]. It can literally grow forever (but not without social consequences).
        • Why can't it be all of the above?
        • by risom (1400035)
          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.
          • Re: (Score:3, Insightful)

            by lgw (121541)

            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.

    • by Krishnoid (984597) *
      Yeah! Point this argument out to those stifflers [wikipedia.org] and they'll have to start showing you some respect. Protip: flirting with their mothers in a way that shows off your sophistication and culture should get their attention.
  • by GameboyRMH (1153867) <gameboyrmh@@@gmail...com> on Tuesday November 29, 2011 @01:24PM (#38203996) Journal

    Rectangles with rounded corners are still safe.

    • by mr1911 (1942298) on Tuesday November 29, 2011 @01:38PM (#38204192)
      Because that was a design patent, not a utility patent on a software concept.
      • by JAlexoi (1085785)
        Not even a patent, it's a non-examined* registered community design.

        * - Community Designs are not examined upon registration.
      • by hedwards (940851)

        It's still bullshit. Things have been that shape for many years, which was sort of the point of pointing out the occurrence in 2001 of a similarly shaped device.

        • by mr1911 (1942298)

          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.

          • Re: (Score:3, Insightful)

            by alendit (1454311)

            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...

            • Re: (Score:2, Funny)

              by mr1911 (1942298)

              I love how corporations are, supposedly, people, but noone expects them to act ethically or for the good of the society.

              Define what that means. Are you suggesting that not patenting inventions, or failing to enforce the patents is ethical? If copycats take advantage of your R&D such that you lose market share and have to lay off employees, that is beneficial to society?

              Are you really making the case that people, acting as individuals, are all ethical and act in the good of society?

              Your world must be nice. Delusional, but nice.

              • Re: (Score:3, Interesting)

                by alendit (1454311)

                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.

              • by Kartu (1490911)

                Copycats can take advantage of enormous "R&D" effort I'd put into designing rectangular shape with rounded corners all day long.

              • by hedwards (940851)

                You're not seriously suggesting that despite evidence to the contrary that Apple invented the rectangle with rounded corners, are you?

          • 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.

      • by Hatta (162192)

        Two questions: What's the difference? And, how is that difference relevant?

        • by mr1911 (1942298) on Tuesday November 29, 2011 @02:48PM (#38205122)
          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.

          • by Hatta (162192)

            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 t

            • by mr1911 (1942298)

              How is that difference relevant to the reasons stated here that software ideas cannot be copyrighted.

              Patents and copyrights are not the same thing.

              From the brief article linked, it appears as though the argument is about software functions, such as drawing a box or moving a cursor. Maybe I miss your point, but I am certainly not arguing that drawing a box on the screen is patentable. How the box is drawn may be, but I don't see that as the argument.

              I may have missed something in the article or with the larger story, but I don't see where it is being suggested that the code itself is not copyrightable

    • by Carewolf (581105)

      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.

      • by Kenja (541830)
        Rounded menu's in software, cant be copyrighted. Rounded corners on a tablet, 100% protected under the law.
  • by mmcuh (1088773) on Tuesday November 29, 2011 @01:29PM (#38204054)
    "... 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.
  • Someone in power gained a shred of common sense? Never thought I'd see the day...
  • by Anonymous Coward on Tuesday November 29, 2011 @01:30PM (#38204072)

    " 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].

  • by ksd1337 (1029386) on Tuesday November 29, 2011 @01:31PM (#38204084)
    I thought it was software patents that were the problem, not copyright. Or am I missing something?
    • Re: (Score:3, Informative)

      by ledow (319597)

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

      • by Theaetetus (590071) <theaetetus DOT slashdot AT gmail DOT com> on Tuesday November 29, 2011 @02:03PM (#38204484) Homepage Journal

        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.

        • by Kartu (1490911)

          Could you name a few EU software patents?

        • Re: (Score:2, Interesting)

          by chrb (1083577)

          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 p

          • Re: (Score:3, Informative)

            by Theaetetus (590071)

            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: [uspto.gov]

            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.

            • by chrb (1083577)

              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. i.e.:

              Finally, in State Street Bank v. Signature Financial Group,[12] the CAFC ruled that a numerical calculation that produces a "useful, concrete and tangible result", such as a price, is patent-eligible.[13] ....

              In 1995, the USPTO established some broad guidelines for examining and issuing software patents. The USPTO interpreted the courts as requiring the USPTO to grant software patents in a broad variety of circumstances. Although the U.S. Congress has never legislated specifically that software is patentable, the broad description of patentable subject in the Patent Act of 1952 and the failure of Congress to change the law after the CAFC decisions allowing software patents, was interpreted as an indication of Congressional intent. Wikipedia: [wikipedia.org]

              However, it seems that this has now been supplanted by Bilski and the need for the software to "transform any article to a different state or thing" [wikipedia.org], and where the data structures being transformed need to be "representative of physical objects or substances." So, if I am interpreting

              • 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" [wikipedia.org], 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-transform

          • by lgw (121541)

            In the US, you don't try to patent software per se (you might get lucky doing so, but those patents aren't supposed to be granted). You patent a "computing device which behaves as follows". The same trick works in the EU, sorry.

      • by JAlexoi (1085785)
        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.
      • by Hentes (2461350)

        Theoretically issuing software patents is forbidden but the EPO will happily ignore that if you have deep enough pockets.

    • by Microlith (54737) on Tuesday November 29, 2011 @02:00PM (#38204452)

      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.

  • by Oswald McWeany (2428506) on Tuesday November 29, 2011 @01:52PM (#38204358)

    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.

  • Whilst we are all saying well done, we are not looking. What are the trying to cover up elsewhere?
    Tin foil on.
  • by SecurityGuy (217807) on Tuesday November 29, 2011 @02:28PM (#38204832)

    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.

    • They reimplemented the idea.

      You shouldn't need to say any more than that, copyright law explicitly declares that ideas are not protected by copyright, only expressions of an idea are copyrighted. Furthermore, the law clearly states that the creative expression must not be a functional part.

      So many people are completely oblivious to this very basic stuff. I know people who don't know the difference between copyright and patent. "IP Law 101" should be a required course in middle school.

  • I think the judges must have been replaced by aliens. That's the only sensible explanation!

  • the effects of the financial crisis are beginning to show in the decreased lobbying power of big corporations.

  • It is so ingrained in the idea of copyrights that "you can't copyright an idea, just its expression" that nearly all the countries, and international treates about it already recognize it.

    It is just absurd that SAS is argumentating to the contrary, but why is it newsworth?

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