Lawsuit Filed Against Software Copyright 417
mdielmann writes "CNet has a story about a lawsuit asking for copyright protection to be removed from software, while leaving patent protection in place. Intellectual-property consultant Greg Aharonian hopes to convince the court that software makers can protect their products adequately through patents, which provide more comprehensive protection but are difficult to obtain and expire in a shorter period of time. It looks like this would hamstring licenses such as the GPL, which are often based on copyright privileges, while leaving OSS vulnerable to patent infringement. Apparently, he's been working on this for the last three years."
MS Welcomes... (Score:2, Funny)
I'm not so sure about that (Score:4, Insightful)
Re:I'm not so sure about that (Score:4, Insightful)
I'm not convinced. You can't patent "a graphical user interface which presents applications in their own 'window'" because *everyone* does those (and even if they didn't, MS doesn't have prior art). So in theory, if you binned copyright laws then you could steal MS's code for that since it's not patentable.
The problem is that requiring the use of patents instead of copyrights breeds a monopolistic environment: Say I write an image viewer. The only way I could protect my code without copyrights would be to patent it. Lets assume that there isn't any prior art and I can patent my image viewer - suddenly I have the monopoly on image viewers because it is illegal for anyone else to write an image viewer even if it's coded completely independently from scratch because they would be infringing my patent.
Now, I own a company with the monopoly on image viewers and anyone who needs one has to buy it off me... what motivation do I have to improve the product? I mean, everyone who needs an image viewer already pays me lots of money for it so what do I get out of expending the time and money to improve it? It's not like there's any competition who might be doing a better job than me and put me out of business.
I can also charge whatever I want because there's no competition to bring down the price.
This, of course, affects opensource developers just as much: you can't develop an opensource competetor to a closed product and if your project is not patentable then you can't protect it at all - some big company can come along and steal your code with none of the inherent GPL style protections.
This is a very bad idea - patents are for *ideas*, copyrights are for the actual code.
Comment removed (Score:5, Insightful)
Re:MS Welcomes... (Score:4, Insightful)
The suggestion, incidentally, that this has to do with defeating the GPL, is patently absurd (patently, geddit? arf arf!) The GPL can be rewritten within this regime to force all use of patented technologies to be released with source and with all other patented technologies in the same product open too. Additionally, with patents requiring details of implementation, we'll see a lot more source code, documentation on proprietary formats, etc.
The problem is that to gain copyright on your code, you have to doTo say the GPL could just be rewritten to work off patents leaves a big hole, in that the way the current GPL can be enforced is through the 'by default' granting of copyright on the code, and if someone violates the GPL then they violate the copyright. If copyright was withdrawn, then theres nothing protecting this code by default, so how would you punish someone for violating the GPL? Patents are too costly to apply for for everything on sourceforge, and indeed the majority of OSS code isnt patentable anyway.
For example, the Linux kernel. You cant patent it in its entirety. You would have to find something patentable within it, and then you loose all protections of this patent if the person decides to rip that part out. Its simply unenforcable.
Re:MS Welcomes... (Score:3, Insightful)
Re:MS Welcomes... (Score:4, Interesting)
Aharonian argues in his complaint that software copyright laws violate the right to due process enshrined in the U.S. Constitution because they do not provide clear boundaries for appropriate use. That means industry players and courts do not have a clear idea of the rules.
"Until you're sued and a judge makes up his mind about what is the idea and expression (at stake), no one knows," Aharonian said in an interview.
Actually, he has it right. Copyrights, in regard to software, aren't working. Instead of stumping to fix it, he presents the logical (yet absurd) argument of throwing it away completely. Perhaps he's just trying to bring attention to the issue by being extreme?
Retroactive? (Score:5, Insightful)
I cant see MS not spending a grip to make this go their way either.
Re:Retroactive? (Score:3, Interesting)
Re:Retroactive? (Score:5, Insightful)
Patents are harder to obtain, maybe, but they're not that hard to get, and as we've seen all to painfully they can be so vague as to apply to a huge range of very different applications.
The Open Source defense would have to either be prior art, or else challenge the patents themselves. A good way, I would think, would be anti-trust. A company that patents some very fundamental and universal aspect of operating systems would effectively have a monopoly on operating systems. Those it didn't own itself it could force to pay licensing fees or royalties.
The scariest thing is, in my opintion, Microsoft may NOT be the one to do it. It wouldn't suprise me in the least if some guy in Alabama comes out of the woodwork with an old patent and tries to force not just open source operating systems, but even Apple and Microsoft to pay him those royalties. It's one thing that people would like to see Microsoft get hurt at their own game, but it's quite another if everybody else gets caught in the fallout, which probably would happen in a patent case. The patent holder would either attack open source OS's first and hope for an easy win, or go right for Microsoft and then use that judgement (not to mention money) against everybody else, if he gets it.
Now, back to open source, if it should successfully defend itself against patents, or even obtain patents of its own, couldn't licenses like the GPL be rewritten to apply the same freedoms to the patented software as it does with existing copyrights? After all, a patent grants the holder certain rights, just like a copyright. It grants different rights, but the holder can still sell, transfer, or even waive those rights. IANAL, but I'm pretty sure you can.
Re:Retroactive? (Score:4, Informative)
Don't exaggerate by claiming patents are as easy to get as copyright. It's entirely false.
Now as someone who works in the game industry, how exactly would patents protect games? If anything, strong patent enforcement would shut down the game industry given the patents owned by the graphics companies, not help it.
Re:Retroactive? (Score:4, Interesting)
On the other hand, if I'll infringe your copyright right now, in order to protect your rights you would have to commence a quite costly legal hassle. Should I be a vicious corporation that could countersue you to death - you'd stand no chance in that battle. With patents, it's the other way round. They are indeed harder to get than copyright, but they are incredibly easy to defend (once acquired). And there are known cases when a small company succesfully defended its patent against a Microsoft-sized giant, even against Microsoft itself [base.com]. Actually, the ease of getting patents is the main danger in software patents - you never know who patented what when you start to write your own program.
Re:Retroactive? (Score:3, Informative)
Re:Retroactive? (Score:3, Informative)
My summary: A total removal of copyright protection is not asked (and will NEVER be granted by the courts; that's something for Congres.) Best case is that the courts declare some license conditions and DMCA clauses "non-binding", they put bounds
"Retroactive" prohibitions don't apply here. (Score:3, Insightful)
Quite the contrary.
If software copyrights are struck down by a court as unconstitutional, the effect is as if they had never existed. If the constitution doesn't authorize them NOW, it didn't authorize them THEN either. (Absent a relevant amendment, of course.)
The prohibition is on PASSING retroactive LAWS (for instance, criminalizing something you did while it was legal an
Here we go... (Score:3, Interesting)
It won't happen (Score:5, Interesting)
The Supreme Court of the United States indicated in its Eldred v. Ashcroft opinion that the Court isn't in the mood to to legislate from the bench, that it's Congress's job to sort out the scope of copyright law so long as there's a semblance of a right of fair use preserved to the people.
Re:It won't happen (Score:3, Informative)
I wouldn't expect Eldren v. Ashcroft to even play into this at all, because it doesn't involv eany of the issues raised therein. The courts don't have the power to decide what methods are or should be used to protect "i
Re:It won't happen (Score:2)
The courts will almost certainly dismiss this suit, especially in light of the Supreme Court decision that you mention.
Re:It won't happen (Score:2)
Well, that's good news when one considers that the court has no constitutional authority to do so anyway.
It's almost like a guy walking around saying to himself "well, I *could* steal that car, but I'm not going to because I'm such a good person" and letting it go to his head.
Re:It won't happen (Score:2)
Re:It won't happen (Score:3, Insightful)
Re:It won't happen (Score:3, Insightful)
Congress can pass all the unconstitutional laws it wants unfortunately. The duty of the Executive and Judicial branches is to veto these laws, refuse to enforce them, and declare them unconstitutional. With Bush in power, there's no chance of the
Copyprivilege law and human rights (Score:3, Informative)
However, no one is associating copyright laws with human rights.
Tell that to Dr. Lessig [free-culture.org].
Hurt the GPL? (Score:3, Interesting)
Seems to me this would be a "good thing" (TM)
Re:Hurt the GPL? (Score:5, Insightful)
Patents take time and money to get, something a lot of people don't have time or money to do.
Re:Hurt the GPL? (Score:5, Insightful)
Part of the problem is semantics. Is the lawsuit intended to remove copyright protection from "software" (In my mind, the compiled and built executable) or from "source code" (the product of a creative impulse and SHOULD be protected by copyright law IMHO.) If the lawsuit helps limit the abuses of copyright law ("look and feel", DMCA contraints, etc) then I agree with the aims completely, but if it intends to remove copyright protection from source code then I think it is a travesty.
Re:Hurt the GPL? (Score:3, Insightful)
And even more time and money to enforce. There are no government protections for patented items, its all done in civil court.
I do believe that there should be copyright, but I also think that it should autoexpire after some given period of time and fall into the public domain.
That way a great great great great great grandson/daughter does not have entitlement to copyright royalties for something that their grea
Re:Hurt the GPL? (Score:3, Insightful)
It does autoexpire. And the supreme court has said that almost 100 years isn't too long, and that retroactively extending it is fine too.
But, in theory, it does still "autoexpire".
Re:Hurt the GPL? (Score:2)
This is essentially what is going on right now. While ideologically superior, the GPL has no real teeth, and is abused left and right by unscrupulous "developers" who repackage Open Source as their own, either whole hog, or berried in a larger theft.
Re:Hurt the GPL? (Score:2)
No, this would hurt GPL because copyright is the mechanism by which you have the right to issue licenses for your code.
Sueing who? (Score:4, Insightful)
Re: (Score:3, Informative)
Re:Sueing who? (Score:3, Interesting)
So if I make lots of "backup" copies of Windows CDs before I agree to the EULA I'm fine then?
This would never fly (Score:5, Insightful)
The idea that software could not be copyrighted but books, music, etc. could is hypocritical. Copyright would have to be removed from all those forms of media to be consistent with software not being copyrightable.
It'll never happen.
Copyright Reform (Score:3, Insightful)
2) Software is the only thing I know of that can potentially be covered by patent, copyright, and trade secret law. To me, that's insane--
Re:Copyright Reform (Score:5, Funny)
Your post advocates a
( ) technical (x) legislative ( ) market-based ( ) vigilante
approach to fighting software copyright/patent abuses. Your idea will not work. Here is why it won't work. (One or more of the following may apply to your particular idea, and it may have other flaws which used to vary from state to state before a bad federal law was passed.)
( ) Total chaos determining what code is protected under which law
( ) Legitimate uses would be affected
( ) No one will be able to find the guy or collect the money
(x) It is defenseless against Hong Kong dupe factories
( ) It will stop abuses for two weeks and then we'll be stuck with it
( ) Users of software will not put up with it
( ) Microsoft will not put up with it
( ) The police will not put up with it
(x) Requires too much cooperation from software companies
(x) Requires immediate total cooperation from everybody at once
(x) Many software developers cannot afford to lose business or alienate potential clients
( ) Code thieves don't care about patents or copyrights
( ) Anyone could anonymously destroy anyone else's career or business
Specifically, your plan fails to account for
( ) Laws expressly prohibiting it
( ) Lack of centrally controlling authority for determining if code is in violation
(x) Foreign countries
( ) Difficulty of searching a code database of protected code
( ) Asshats
( ) Jurisdictional problems
( ) Unpopularity of weird new laws
( ) Public reluctance to accept weird new forms of licenses
(x) Huge existing software investment
( ) Susceptibility of established software to copyright attack
( ) Willingness of users to upgrade existing software to new violation-free versions
( ) Willingness of users to pay more for the same software
(x) Armies of worm riddled broadband-connected Windows boxes
( ) Eternal arms race involved in all copyright approaches
( ) Extreme profitability of patents
( ) Joe jobs and/or identity theft
( ) Technically illiterate politicians
( ) Extreme stupidity on the part of people who do business with patent houses
(x) Dishonesty on the part of some developers themselves
(x) Development costs that are unaffected by copyrights/patents
( ) MS Office vs. OpenOffice
and the following philosophical objections may also apply:
( ) Ideas similar to yours are easy to come up with, yet none have ever been shown practical
( ) Any scheme based on opt-out is unacceptable
( ) Any idea posted on
( ) The right to develop code independently should not be the subject of legislation
( ) Blacklists suck
( ) Whitelists suck
( ) We should be able to talk about Viagra without being censored
( ) Countermeasures should not involve wire fraud or credit card fraud
( ) Countermeasures should not involve sabotage of public networks
(x) Countermeasures must work if phased in gradually
( ) Writing software should be free
( ) Why should we have to trust you and your "prior art"?
( ) Incompatiblity with open source or open source licenses
( ) Feel-good measures do nothing to solve the problem
( ) Temporary/throwaway development in place of a real project is cumbersome
( ) I don't want the government reading my source
( ) Killing them that way is not slow and painful enough
Furthermore, this is what I think about you:
(x) Sorry dude, but I don't think it would work.
( ) This is a stupid idea, and you're a stupid person for suggesting it.
Re:Copyright Reform (Score:3, Interesting)
I started with the idea of no copyright, and a consitutional mandate of "to promote the Progress of Science and useful Arts." So what would promote the progress of software?
Well, like music or books or other artistic ventures, we want people to have an incentive to create lots of us
Re:This would never fly (Score:3, Insightful)
The More Things Change..... (Score:3, Interesting)
I don't think he doesn't have a point, I think he's done a wonderful job of exploring moving the system to the patent side but I believe all bottlenecks and corruption will be moved from one office to another.
Re:The More Things Change..... (Score:2)
To some extent it already has. With patents being granted for the trivial. The only real difference is that patents have not massivly increased in length, yet.
Who comes up with these ideas (Score:5, Insightful)
I agree (Score:5, Insightful)
The exact opposite -- precisely (Score:2)
Re:Who comes up with these ideas (Score:4, Funny)
See, I work in this big time law firm. We are all such great men (we're all white men in our mid-40's) that we don't even have to work anymore to make immense amounts of cash. We have all these junior employees doing all the hard work for us, while we only stand up in the court to make opening and closing speeches (and we're mighty good at making these).
Every once in a while, however, this kind of work gets boring and we need new challenges to keep us motivated. Sure, we could all retire today, but we love our work (every good lawyer loves his work) so much that we want to keep on going and evolving until we die. See, I had this idea one day that if a lawyer keeps practicing his skills, he'll enter some sort of godhood one day. Someday I'll turn this idea into a minor religion and make a fortune on it, but I'm not going into details right now.
Now, what I'm getting at is that every once in a while, we will get bored of our tedious everyday life. When that happens, one of us will come out with a crazy idea (we're always brimming with such ideas, but we'll usually keep them secret)-- like suing Linux, or abolishing software copyright protection. At first, we'll all laugh at how ridiculous that idea is, but after we've stopped laughing, we'll try and get it accomplished. Then it's simply a matter of finding some idiots with too much money at their hands, and we're all set. Let the games begin!
Posting this anonymously, as I fear that my partners or other such groups might want to get back at me for this revelation.
Re:hammer nail head. (Score:2)
copyrights do not.
Intelligent Software Patents (Score:2)
How would patents apply (Score:5, Insightful)
And yes, Open Source will have a problem. A corporation could easily say "Hey the Open Source implementation that you have of XYZ infringes on my patent on the commercial version".
IMHO, I don't think patents will work for software (at least in this form). It's simply too abstract, and too widespread. Writing a poem and writing an algorithm are two different things. The poet can get money for having his poem published in books. But let's say you come up with a rather innovative and efficient algorithm for doing task X, and you work for a company Y, then Y owns the patent on it. So anyone who wants to use it will have to pay money. But what if you came up with another algorithm that does the same thing? Could they sue? What if you're a small company Z that came up with said algorithm? The big guy could take you out...
IANAL, but our laws for software are probably not mature (and well thought out) enough to deal with this... yet.
Re:How would patents apply (Score:3, Interesting)
Actually, to answer your questions. Yes, you will have to pay them if they (fairly) patented the algorithm and have demanded payment (as has always been the case).
Also, Open source has always been vulnerable to the "Hey the open source
As for comming up with an alternate algorithm to solve a problem for which there already is a patented algorithm
Re:How would patents apply (Score:2)
This IS a discussion forum -- right? How else can I learn if I don't ask questions? So I may ask "stupid" questions, but I'll learn from them. We'll learn things from discussing them and it may so happen that people may ask rather obvious questions. I wasn't pretentious in my post, and I know that I am not an expert in patent law, but I am willing to learn, and that's exactly why I used "IANAL".
As far as my sig, I like it, and that's all
Re:How would patents apply (Score:2)
IMHO, I don't think patents will work for software (at least in this form)...
You do know that software patents exist and that software is currently protected by both copyright and patent law?
If you independently develop something which infringes on a patent, the patent holder can elect whether or not to allow you to continue to use the patented process. This doesn't always involve money, they can actually just say "no, you can't use our patent, go file for bankruptcy or see us in court."
There is lit
On patents (Score:3, Informative)
Excuse me? Is it the author or the editor who's claiming that patents are difficult to obtain? Haven't we been seeing patents being awarded left and right for the most mundane industry processes? Difficult to obtain, indeed.
Re:On patents (Score:4, Informative)
In comparison to a copyright, yes. Copyrights are automatic (more or less). Registered copyrights just require a fee and some documentation. Patents require a review process (ok, a *bad* review process, but still harder to get than a copyright).
Re:On patents (Score:2, Interesting)
Compared to copyright, which is an individual *right*, and automatically conferred on any authored work, patents are entirely more difficult to obtain.
The fatal flaw in the case of the article, of course, is he is seeking to abridge an individual right reserved to the people. In order to succeed, he would have to pursue litigation against each and every one of them.
Any blanket weakening of copyright is going to have collateral damage across several industries. Any le
Re:On patents (Score:2)
Re:On patents (Score:2)
Is it individuals and small corps which are filing these daft patents though? One obvious problem is that such a scheme would appear to greatly favour existing "players" in a market.
Re:On patents (Score:3, Insightful)
1) No one would ever patent a program that they didn't think would recoup the cost of filing for the patent in a reasonably short amount of time. This would take IP protection from all small players.
2) Unless one came up with a patentably different way of doing something that others had already done, one would not be able to patent it. Indeed, if they weren't substantially di
Interesting story (Score:2, Insightful)
He seems to argue that the patent system, as flawed as it is, has rules that require more complete explaination of what is covered, and has rules covering
Re:Interesting story (Score:2)
Besides which copyright isn't about an idea, its about the expression of that idea. So any number of people can have the same idea and code it differently. They are all equally protected. In fact it's easie
It will never happen. (Score:3, Insightful)
will never happen (Score:2, Interesting)
So any court would probably say "this is not our bailiwick". He should lobby congress if he wants this kind of change.
Actually, he should go somewhere far away from the united states, I don't like him. His idea is stupid.
It's stupid because with copyrights, I know that I won't infringe anything as long as I write it myself. With patents, I have no idea if anything infr
Re:will never happen (Score:2)
That's not entirely true. If you independently create something, then yes, you aren't infringing by doing so. But if you even subconsciously drew upon a work you had access to, and which is substantially similar to your work, then you might have infringed.
You should read up on the issues surrounding George Harrison's My Sweet Lord for more about this.
Hard to imagine a world like this (Score:2)
No software copyright?
Is the argument that software is a machine and that it shouldn't be illegal to clone a machine whose design isn't patented?
That's a fine idea by me, but the patent office is dangerously inept at dealing with software.
How many real software innovations have there been? I can only think of some compression algorithms and ciphers that are worth patenting, and even then they go too far and last way too long.
Invalidating software copyright practically demands patent reform.
Two things (Score:2)
2) How would it supposedly work under patents?
How would commercial software work? The BSA dude saying that they couldn't go after pirates was correct. Sure, this would end the GPL, but it would mean that the only protection for any source code is trade secret law.
That's interesting. If this guy is advocating increasing the scope of patents, then this is all fucked up, but otherwise I simply can't imagine the way he wants software to work.
And of course it won
Time to change my career path? (Score:2)
Now, where did I leave that "You too can be a Patent Examiner in just 90 days!" trade school brochure?
Opposite of what's happening in the EU (Score:3, Interesting)
Really? Then how do you explain this? (Score:2)
As Much as I Would Like to See (Score:2)
On the plus side, all those early arcade ROMs would start becoming legal to trade. At least I think they would, if the courts decide that Copyright doesn't cover software. If Congress went and made a law that said the samething, it couldn't be applied retroac
Goodbye, Little Guy (Score:3, Interesting)
The time is ripe for GPL version 3 (Score:3, Interesting)
It is time for software developers to donate potential patents to the FSF. If copyright is no longer a defense against one's code being ripped off by commersial competitors. Microsoft must be secretly wishing that this guy wins his case.
Perhaps, also the Gallery of CSS Descramblers [cmu.edu] could come is useful. Greg Aharonian's filing is taramount to saying that code is not speech, after all.
against copyright on binary software (Score:2)
It's especially difficult to argue that compiled software is an "expression" worthy of copyright, because it'
Re:against copyright on binary software (Score:2)
The same is true of a DVD.
Change is needed, but not this change. (Score:3, Insightful)
Personally, I think the current copyright system has been manipulated into a terrible state by big businesses. But, a judge is not the guy to redesign the system. It needs to go before Congress to make fundamental changes (which is probably a bad idea right now, as our current government is so hopelessly corporatist that you might as well let Disney make the rules).
Copyright covers so many different types of media. Why is the protection the same for a newspaper article as for a software program, or a movie?
And, there are some things that companies may want to protect for centuries. But, that is just a huge burden on 99% of the other material that it makes no sense for. Give companies the ability to register copyrights, and extend them at a cost that increases as the term goes longer. Let them bear the cost burden of the system they benefit from.
He's going after the wrong thing... (Score:2)
Copyright law says absolutely NOTHING about inappropriate or appropriate use, it only controls copying. What he's talking about are shrinkwrap/clickthrough licenses, which are not defined in copyright law because they're contracts... switching to patent law wouldn't change a thing: the clickthrough licenses would end up being "licenses for use of the patented invention" rather than "licences for the use of the copyrighted product", and we'd be in the same place, except patents are so much broader that pat
Source code is expressive. Object code is not. (Score:3, Interesting)
Under that theory, the GPL would keep its teeth but (e.g.) the M$ EULA, which also relies on copyright law, would not. Of course, that won't happen in a million billion jillion years...
Re:Source code is expressive. Object code is not. (Score:3, Insightful)
Mechanical translations of a copyrighted work are copyrightable and should be. Suppose that I take any copyrighted digitized work and encrypt it. It is a mechanical translation that is no longer meaningful to humans and therefore loses its copyright. Now I unencrypt it and I have a perfect uncopyrighted copy of wha
Copyright over Patents (Score:5, Interesting)
If we have to choose one protection for software it would have to be copyright.
Patents basically kill any type of compentition. You could charge whatever you wanted and sue the hell out of anyone who tries to write a competeing product. It basically means that lots of profit for the patent holder and no competition driven innovation or service.
Copyright on the other hand protects a companies specific implementation of an idea. No one else can use that implementation but it doesnt prevent someone from making a compediting product.
If linux didnt exist, Microsoft probably wouldnt be trying to create new innovations for longhorn such as avalon.
Trade Secret (Score:2)
Trade secrets do have backing in law (this was an aspect in the DVD CCA vs. John Does [prohosting.com] cases) and if software copyrights go away, there might be a resurgance in trade secret cases (even though programs are released to the public).
I doubt copyright would g
Wish on you puppet of big players... (Score:2)
I am not going to write again why, so many more important people did before me.
Won't fly, but... (Score:2)
Inforcement. (Score:2)
Better Idea (Score:2)
The copyright on software would effectively be the same, because anyone who copied the binary code woul
Two Systems - Neither Works? (Score:2)
We have the question of software covered by copyright. We have the question of software covered by patent. We have companies using both.
Why assume, however, that copyrights, patents, or a combination of both are appropriate at all to software.
Perhaps, and this is pie-in-the-sky, software needs to be uniquely recognized separate from current ways of registering rights.
Do I have a solution? No. I merely throw this out for discussion.
Re: (Score:2)
pro big business (Score:2)
This should be fun (Score:4, Insightful)
Right now, in case nobody has noticed, the European Union is looking at the idea of software patents. If someone were to...
Yeah, yeah, it's spin-doctoring. They're not really saying the patents are bad, they're really saying that patents alone are bad. Spin is the stuff of modern politics, however, and industry has used it enough times against those it doesn't like.
To beat software patents in Europe and (hopefully, eventually) America, we simply show that there are no significant benefits or additional protections offered by patents, according to the software industry itself. It won't influence those set in their ways, but any skeptics who are just along for the ride might be swayed.
Backwards (Score:4, Insightful)
Maybe so, but patents are even worse. At least with copyright, there's one set of rules that apply to all cases. With patents, the boundaries are determined by the set of all claims in every patent that exists. That's millions of rules to check against each new line of code I write, with hundreds more being added every single day. What's worse, these claims are written by the very people who benefit from them, and they are often intentionally obfuscated by their authors.
IMHO, copyrights are actually a good match for software *source code*, since it looks and feels a lot like a work of literature. The same isn't so true for object code. Since it is a "weakly encrypted" mechanical transformation of the source, it doesn't provide the customer with any of the benefits of knowledge that copyrights on literature and music were originally intended to promote. However, patents are a particularly poor match for software because of the O(n^2) legal problem of needing to check millions of lines of code against millions of patent claims. (That's a job on the order of 10^12 operations for every large program out there!)
I believe that object code would be better be protected by a totally new IP concept that is tailored specifically for the unique properties of software. Object code would not be eligible for either copyright or patents as they exist today.
It might be something like a standardized EULA that properly balances the interests of the vendor and the customer. (IMO, one-sided vendor-written EULAs should also be disallowed unless they get an actual ink-and-paper signature on a valid contract prior to the sale). Instead of being based on the concept of physical copies like standard copyright, which doesn't map well to networks of computers, it would be based on the actual usage patterns of computer software. The rights of someone to compile some source code they have into object code, or to make copies of object code, would be dictated by this new concept, not by copyright.
I think that the new form of protection would ideally provide some weak protection against blatant ripoffs of look-and-feel and innovative new features, but it should explicitely allow for interoperability. Maybe published APIs and file formats should be required to get any IP protection at all. To combat monopoly-protecting market barriers, any protections under this new concept would also be subject to the stipulation that they can be licensed by anyone under reasonable-and-nondiscriminatory terms.
Of course, don't hold your breath wating for anything like this to happen in the real world.
Re:Backwards (Score:3, Insightful)
Also, when you prove copyright violations, particularly with source code but it can also be done with compiled binaries as well, you get the watchmaker principle where it seems
One advantage of patents (Score:3, Informative)
Sure big companies (and small "IP" companies) will abuse patents, but they do that already, along with abusing copyrights and contracts (shrink-wrap). The only way for common people to live in a sane world is to constantly push back.
It's not COPYRIGHT, it's LICENSE (Score:3, Insightful)
When you "buy" a program, you don't buy a copy that you can use under normal copyright terms, you buy a license to use the software.
If software was patented, they would come up with a similar scheme to impose similar licenses on you using patents instead of copyrights. It might even be easier for them to impose draconic restrictions for most users.
Going nowhere (Score:3, Informative)
(1) Patents are a lot more expensive and time-consuming. Copyright is free.
(2) Copyright protects expression, (loosely defined -- computer programs have a lot of expression), patents protect inventions. Most computer programs do not have the necessary novelty and/or non-obviousness to be considered inventions.
(3) The Supreme Court has already had a chance to decide that copyright does not extend to software, but declined to do so. See Computer Associates v. Altai.
(4) The shift would effectively put all current software completely out of IP protection -- if you put your invention out for public use and don't file for a patent w/in one year, you're out of luck. Most software is > 1 year old, so this would mean no copyright, no patent.
If there's a change to be made here, it will have to be Congress doing it, not the courts.
Limiting software copyrights is a good idea.... (Score:4, Interesting)
... even if software patents aren't.
I've written about this idea in various places, and this seems like another good opportunity: Copyright protection for software, as it works now, is seriously messed up.
Copyright has, until recently, been well-understood to be a balance between the interests of the author and the interests of society, with the ultimate goal to enrich society. Specifically, it's a solution to the problem that, say, a book author has: if he publishes his material, it can be copied. He can maintain control of his work only by keeping it secret. So, society agrees to grant him a monopoly over his work, but with some limitations. Key among those limitations is that his ideas and techniques are NOT, repeat, NOT protected. That way society can benefit from other authors picking up those ideas and techniques and expanding upon them.
This is different from patents in that patents provide stronger protections but for a more limited time period, specifically, patents do provide a measure of protection for ideas. Also, patents can only be obtained through a process of public disclosure, so that others can pick up the ideas and perhaps build upon them.
Both mechanisms are intended to *promote* progress through the promulgation of ideas. Now, traditional copyright law has not had any publishing requirement because it hasn't been necessary. You can obscure how a machine works, but you can't hide the words you use in a book, or the notes you use in a song. Copyright without publication didn't make any sense, so no one worried about it.
Software changed that. Now, it is perfectly possible to both publish your work *and* to keep it a secret at the same time. By publishing an opaque binary while keeping the source secret, you obtain both copyright protection and trade secret protection on the same work -- and perhaps patent protection as well. This is an abuse of the system, which was never intended to provide such double or triple coverage. This abuse destroys the careful balance that was established between society and creators, at the expense of the society that is then tasked with enforcing the imbalance!
There are numerous ways in which current IP law is out of synch with the social contract that purportedly underlies it, but in my opinion this is one of the worst.
In my opinion, the way to restore the balance is to extend copyright protection only to software whose source code is published along with the binary. This does not mean that it has to be Free Software; the owner can still reserve all rights to reproduce it or prepare derivative works, but anyone who bought a copy would be able to read it and learn from it.
Companies who had important new techniques that they did not want to share with the world could refuse to publish source and rely instead on trade secret and contract law to protect their work. But the law should not provide copyright protection for that work, nor could it provide patent protection, because patents must published.
I'm actually not wholly averse to software patents, either, but such patents should be (a) short and (b) held to a very high standard for approval or review.
We need to restore the balance to IP law. It's so far out of whack right now that an increasing number of people simply consider it all to be bad, and that is a terrible outcome. IP is important, and will be increasingly important. For that reason, we need sane laws that implement the social contract mentioned in the US Constitution and provide proper balance between the competing interests.
Is Software a Tangible Thing? (Score:3, Interesting)
I don't see how software can receive protection under both programs. I believe that's part of the problem. There's a fundamental arguement that hasn't been settled - the lawmakers need to declare that software is either IP or tangible-goods. Once that's done, you use either copyright or patent, respectively. You don't get both.
If software is IP, which is the classification I believe it should have, then you don't get patent protection. None. Can you place your "patented algorithm" in my hand? No no no, that's a piece of paper with some scribbling on it. I want just the algorithm. You can't do that? Copyright
Re:Difficult to obtain? (Score:2)
Re:Difficult to obtain? (Score:4, Insightful)
So let's say that software patents become quite common in the USA and Europe. It's the large companies who are going to be flooding the patent offices with filings for anything they can get their hands on. A small developer, even if they have a kick-ass technology, is much less likely to get a patent on it. There is a big hurdle (cost and administration) in front of them.
So the natural course is, the larger companies will get all kinds of legal rights to technologies, and smaller companies or individual developers won't be able to compete. I guess that's the big business plan for the 21st century; corporations are out of ideas and the last hope is to guarantee themselves some kind of royalty revenue stream, without innovating squat. And this is why, IMHO, the "west" will lose their innovative edge and pave their own road to obsolescence.
An important point (Score:3, Insightful)
Speaking in a US-centric manner: And here is an even more important one. Assuming, for a moment, that a small player does manage to obtain a patent, the small player cannot afford to defend this patent in court. Or a copyright. A large company has the deep pockets required to tie up a small company long enough to bankrupt them in the pursuit of what should, on the face of it, be a clear and simple pursuit.
This is
Re:Irreparable Harm? (Score:2)
Wouldn't it be fairly easy to demonstrate that this would cause devastating harm to the economy?
Most of the unique software in the world today is never redistributed. Some of the software is widely redistributed. The latter market may be affected, but dooming the economy? Nah.
Dooming the economy would be rewriting all of the COBOL code in the world.
Re:This doesn't sound like it would benefit M$... (Score:2)
First, corporate customers are always going to pay the required licensing fees anyway. Home or other small fry retail users are the ones who might grab a copy of software without paying. The question is, do they even matter?
Now take a look at all of Microsoft (or any other large software company's) business. Where do they generate revenue from?
Re:Combine this with opensource and this is a winn (Score:2)
Not quite. They wouldn't need to publish anything. They aren't saying the code must be published, only that it isn't copyrightable.
Re:So if a game isnt patented... (Score:2)
the graphics/artwork, storyline/writing, sound files, map layout, etc... would be covered under copyright laws