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Re: The death of copyright in software


From: rjack
Subject: Re: The death of copyright in software
Date: Sun, 03 Jun 2007 13:50:49 -0500
User-agent: Thunderbird 2.0.0.0 (Windows/20070326)

Stefaan A Eeckels wrote:
On Sat, 02 Jun 2007 20:04:19 -0500
rjack <address@hidden> wrote:

Would you maintain that both versions were identical "after applying
trivial obfuscation"?

I never claimed any such thing.

Here's part of my initial post in this thread:

*****************************************************************
“In the computer-software context, the doctrine means that the elements
of a program dictated by practical realities--e.g., by hardware
standards and mechanical specifications, software standards and
compatibility requirements, computer manufacturer design standards,
target industry practices, and standard computer programming
practices--may not obtain protection.  Id. (citing case examples);  see
Sega Enters., 977 F.2d at 1524 ("To the extent that a work is functional
or factual, it may be copied.");  Brown Bag Software v. Symantec Corp.,
960 F.2d 1465, 1473 (9th Cir.1992) (affirming district court's finding
that "[p]laintiffs may not claim copyright protection of an ...
expression that is, if not standard, then commonplace in the computer
software industry").  As "an industry-wide goal," programming
"[e]fficiency" represents an external constraint that figures
prominently in the copyrightability of computer programs. Altai, 982 F.2d at 708.” Lexmark International, Inc. v. Static Control Components, Inc., 387F.3d 522 (6th Cir. 2004).

Some practical realities iterated in Lexmark, supra, that eliminate
copyright protection for computer source code are:

1)    hardware standards
2)    mechanical specifications
3)    software standards
4)    compatibility requirements
5)    computer manufacturer design standards
6)    target industry practices
7)    standard computer programming practices
8)    functional efficiencies
*****************************************************************

I claim that virtually *all* non-comment computer source code intimately involves one or more of the above factors.

The Copyright Act is contradictory. Sec. 101 Definitions says:

A "computer program" is a set of statements or instructions to
be used directly or indirectly in a computer in order to bring
about a certain result.

Sec. 102(b) Says:

(b) In no case does copyright protection for an original work of
    authorship extend to any idea, procedure, process, system, method
    of operation, concept, principle, or discovery, regardless of the
    form in which it is described, explained, illustrated, or embodied
    in such work.

Thirteen Federal Circuit Courts of Appeal can't figure out what the "idea-expression dichotomy" means.

The Lexmark decision was in the Sixth Circuit which is highly respected on copyright matters by the other Circuits. The Lexmark Court went to great length to explain what was *not* copyrightable in computer programs. What's left after the AFC test is a form of vaporware.

Long ago in Baker v. Selden, 101 U.S. 99 (1880) the Supreme Court explained that while a book *describing* a bookkeeping system is worthy of copyright protection, the underlying method described is not. Unfortunately lines of computer source code not only *describe* an idea -- by definition they directly or indirectly *control* the hardware that implements the idea's objective as well.

rjack













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