EU Court Adviser Says Software Ideas Can't Be Copyrighted 196
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."
Finally! (Score:2, Interesting)
Re:Finally! (Score:4, Interesting)
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Re:Finally! (Score:5, Funny)
Re:Finally! Yes... (Score:2, Funny)
A kink in your armor, you British Scum.
Re:Finally! (Score:5, Informative)
I think you're thinking about patenting software. Copyright is a different thing. Generally you patent a device. Copyright is for protecting written information.
Re:Finally! (Score:5, Insightful)
Copyright is for controlling the distribution of information. The only protection for information is duplication and distrubition.
Re:Finally! (Score:4, Insightful)
Very good. You mind if I use that?
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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.
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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.
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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.
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You can copyright a piece of software in the EU as well, what you can't do is copyright an unimplemented "idea" .
Re:Finally! (Score:5, Insightful)
You can't copyright a recipe but you can copyright a cookbook. Likewise you shouldn't be able to copyright a software design/function but you should be able to copyright a software implementation of that design/function.
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Substitute the word "function" for "functionality" in the GP's post, and you'll understand the point he was trying to make. While the ellipsis he made is entirely grammatical and allowed in English, it does open the door for pedantry, especially when considering the context, and the second meaning to the word "function" specifically dealing with programming.
Please let the Americans know this ... (Score:5, Insightful)
Can you point out to those folks on the other side of the Atlantic that software patents stiffle invention and innovation.
Thanks.
Re:Please let the Americans know this ... (Score:5, Funny)
Re:Please let the Americans know this ... (Score:5, Insightful)
Dear EU,
Can you point out to Slashdot moderators the difference between copyright and patents?
Thanks
Re:Please let the Americans know this ... (Score:4, Insightful)
maybe you don't realize that people do try to claim copyright on API's which are software.
Where have I heard that before....oh right? maybe the google vs oracle case?
Patents and copyright both have problems, at least we can work on one at a time.
Intellectual Property is killing everything (Score:5, Insightful)
Re:Intellectual Property is killing everything (Score:5, Insightful)
There are so many lawsuits flying around over patents, copyrights and wishful thinking that it's no wonder we are in recession.
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.
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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!
Re:Intellectual Property is killing everything (Score:5, Interesting)
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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.
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Look at a $1 bill [wikipedia.org], and read the message "this note is legal tender for all debts public and private". Physically it's just a worthless piece of paper, but the government is telling you in no uncertain terms to pretend that it has $
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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.
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http://en.wikipedia.org/wiki/File:Greece_public_debt_1999-2010.svg [wikipedia.org]
Compare that with e.g. Japan here: http://en.wikipedia.org/wiki/File:Dept.svg [wikipedia.org]
Fun Fact BTW: Currently Greek dept in absolute numbers is about 170 billion Euros. Germany still ows Greece WW II reparation payments (we wrecked that country and its people pretty bad), which are (inflati
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They don't have to. U.S. courts recognize International Law as it exists.
Except when it doesn't suit them, and thats pretty much always.
Re:Outrage (Score:4, Funny)
Channel Steve Jobs much?
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Re:Please let the Americans know this ... (Score:4, Informative)
This is nonsense. First, you do not 'file' copyrights. You can register them, but almost no-one does.
To win a copyright case, you must prove that copying (intentional or otherwise) occurred. For software, that means that either the binaries are the same (very easy to prove), or the source code was copied. For the source code to be copied, you must have had access to it. So the first thing the plaintiff must do is show you had access to his source. Then, they make you turn over your source, and compare them. If they are substantially similar, you have a problem. How often does that happen when in fact there was no copying? Almost never.
Now, let's take a more likely case - one that does in fact occur. You spend years designing and developing a product. You release the product. I managed to get your source code (legally or otherwise). I spend a few weeks modifying your code to make it faster, prettier, etc. Users like yours better, so mine doesn't sell. How is THAT fair market competition? It isn't.
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Patents. You're thinking of patents. Copyright is different.
Modded +5 dead wrong.
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Software is still protected by copyright. "Ideas" are not software.
Re:Please let the Americans know this ... (Score:4, Insightful)
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Patents protect implementations. Straying into patenting ideas is where software patents cause harm.
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Patents protect implementations.
If that were true, then someone else's implementation of a patented device wouldn't infringe. Patents protect the underlying idea, regardless of the implementation.
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IANAL, but I have messed with patent filing before. If an implementation differs sufficiently, it won't infringe (this is harder than you might expect, but it usually possible). For example, you couldn't patent the idea of an automatic transmission. You could patent an automatic transmission that uses hydraulic pressure in a certain way to cause a gearshift internally, but your competitor could patent an transmission that uses hydraulic pressure in a sufficiently different way to cause a gearshift intern
Don't worry Apple (Score:5, Funny)
Rectangles with rounded corners are still safe.
Re:Don't worry Apple (Score:5, Insightful)
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* - Community Designs are not examined upon registration.
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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.
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It's still bullshit.
That may be, but if bullshit is the law it is hard to fault companies for using it to their maximum advantage, as it is almost certain someone would find a way to use the bullshit against them.
If you don't like the game, yelling at the players is not effective. Change the rules.
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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...
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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.
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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.
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Copycats can take advantage of enormous "R&D" effort I'd put into designing rectangular shape with rounded corners all day long.
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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 judge's opinion (Score:3)
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.
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In my mind, it's better to use that choice in such a way as to try to effect positive change whereever you can
Ranting on Slashdot is very unlikely to change patent law. But if it makes you feel better, carry on, but don't try to convince anyone it is to bring about positive change.
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Two questions: What's the difference? And, how is that difference relevant?
Re:Don't worry Apple (Score:5, Insightful)
What's the difference?
A design patent is specifically about the look and feel of a product. This may include rounded corners. It does not rely on prior art in that no one made an electronic device with rounded corners before, but that this tablet computer with rounded corners and certain other features is a certain look and feel that does not exist yet in the tablet computer market.
And, how is that difference relevant?
A design patent is look and feel, a utility patent is how you do something.
It is really quite simple when you quit trying to make it difficult.
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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.
Why does that argument not apply equally t
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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
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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.
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If only... (Score:3)
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Isn't that exactly the theory behind copyright as well?
The theory of copyright is that if you spend a year of your life and all your savings creating a useful device, that someone else shouldn't be able to come along, rip your work apart, and create a knockoff, charging less for it since they don't have research costs to recoup.
What is going on? (Score:2)
Summary Clarification (Score:5, Informative)
" software functions themselves cannot be copyrighted"
When it says "software functions", it doesn't mean functions, it means features, eg. click button to update the table. It's basically confirming that copyright can't be used in the same way as patents, that's why we have patents in the first place [as brain-damaged as they may be].
How is this relevant? (Score:3)
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The EU already doesn't allow software patents anyway (and those it has allowed are unenforceable).
Re:How is this relevant? (Score:5, Informative)
The EU already doesn't allow software patents anyway (and those it has allowed are unenforceable).
Yes, it does. Or rather, it does in the same exact way as the US allows software patents... and US counterparts for the ones that are unenforceable are also unenforceable here.
In both Europe and the US, software on its own (or 'per se') is unpatentable, but a machine that executes software is patent eligible. Similarly, a method performed by a machine executing software is also patent eligible. Basically, the EPO had a parallel decision to the Bilski decision here, with the same result - software is still patentable, provided it's tied to a machine.
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Could you name a few EU software patents?
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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
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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.
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.
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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
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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
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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.
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Theoretically issuing software patents is forbidden but the EPO will happily ignore that if you have deep enough pockets.
Re:How is this relevant? (Score:5, Informative)
When you copyright your software, you copyright your specific implementation of the code. If someone comes along and writes software that performs the same function but without infringing on your copyright, you are facing competition.
SAS asserted that they were the subject of copyright violation, and attempted to shut down a competitor that created an independent implementation.
Company A and Company B (Score:4, Interesting)
My opinion.
Company A should not be able to use Company B's sourcecode should they decompile it (or steal it).
However if Company B creates software that moves widgets around a screen depending on buttons you press on a keyboard. Or causes widgets to do tasks- they should not be able to prevent Company A mimicing their software.
Certainly, things like corporate logos should be protected- but what the software does functionally shoudln't.
If one company can independantly write source that acts the same as another company- they have derived it seperately and fairly.
I'm of the same feelings of patents too. If company A can make a machine to do the same as company B- they should be allowed.
They shouldn't be allowed to mould their parts on the other company and build their own machine that way- but if they can build an equivalent machine that does the same thing- that shouldn't be illegal.
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Just a note, for clarification:
"clean room" reverse engineering can legally be used to implement a functional replacement for a piece of software.
As an example:
Person_A creates a piece of software.
Person_B studies that piece of software, noting what it does (but not how it does it).
Person_C receives Person_B's description, and implements the functionality therein described.
As a real-world example:
Google used this process for their Dalvik engine (a clean-room reverse-engineered implementation of the Java int
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You forgot a step:
Person_B sends a copy of the reverse-engineered source code to Person_C under the table, or Person_C gets a back-channel copy of the actual source code from Person_A.
In the real world that happens more often than not (you wouldn't believe some of the stories I've heard). The company just needs to have a policy against it, and scrap the project if anyone actually gets caught.
It's a trap! (Score:2)
Tin foil on.
Important distinction for those who don't RTFA (Score:5, Informative)
He's not saying that functions like
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.
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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.
This can't be right... (Score:2)
I think the judges must have been replaced by aliens. That's the only sensible explanation!
Apparently (Score:2)
the effects of the financial crisis are beginning to show in the decreased lobbying power of big corporations.
So, who ever said they were? (Score:2)
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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Essentially, what we're facing is more akin to "Other authors can't write and publish books because we've patented/copyrighted the concept of letters and words."
Or a carpenter can't build because we've got a patent on wood.
Futhermore, there should be a restriction in regards to the use of programming languages. Should a JavaScript function be patentable/copyrightable? One might argue that JavaScript itself provided the inherent ability to implement. And that a million monkeys typing randomly could have ty
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One might argue (...) that a million monkeys typing randomly could have typed that same occurrence.
Yes, but that wouldn't have the right colour [sooke.bc.ca].
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I'll just assume that's a troll... no one is legitimately that stupid.
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... except the USPTO.
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Apparently the suit was exactly that - SAS claims a rival's software infringes on their copyright, despite being a copy of functionality but not actual implementation.
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"Therefore, if this *is* supposed to be about high level ideas, it's completely pointless and stupid"
Stupid? Sure. Pointless? Not at all.
This opinion needed to be expressed because somebody *got* the copyright and was capable enough as to sue somebody else to protect it.
Re:How Much (Score:5, Funny)
There are Packers fans in Europe?
Re:How Much (Score:4, Interesting)
Friend, the corporations we have to worry about are not the "US corporations" or the "British corporations" or the "French corporations".
The ones that are destroying our societies on both sides of the Atlantic (and Pacific) are the transnational corporations who strive for a position of power above mere nations.
It's not yet too late to put these out-of-control entities back in their place, but it will take a long hard fight. The good news is that the fight has begun, apparently all around the world.
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He's probably Stephen Byerley, but his original name wasn't obvious enough.
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This isn't an outbreak of nothing, because a court in the US would have the same decision. But how is the EU more draconian? Please don't confuse one or two countries with "the EU".
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More and more, I find EU rulings to be oh-so-astute.
Oh, how quickly our memory fades. [slashdot.org]
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http://science.slashdot.org/story/11/11/20/025254/in-the-eu-water-doesnt-officially-prevent-dehydration [slashdot.org] is the discussion of that recent event, right here on slashdot.