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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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  • 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 ledow (319597) on Tuesday November 29, 2011 @01:34PM (#38204122) Homepage

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

  • 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.

  • 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 Theaetetus (590071) <theaetetus.slash ... .com minus distr> 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 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.

  • by bws111 (1216812) on Tuesday November 29, 2011 @04:13PM (#38206212)

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

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

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

  • by Theaetetus (590071) <theaetetus.slash ... .com minus distr> on Tuesday November 29, 2011 @04:54PM (#38206756) Homepage Journal

    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.

Machines certainly can solve problems, store information, correlate, and play games -- but not with pleasure. -- Leo Rosten

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