From phm@a2e.de  Mon Jun 25 20:20:35 2001
From: phm@a2e.de (PILCH Hartmut)
Date: Mon, 25 Jun 2001 21:20:35 +0200 (CEST)
Subject: [Patents] Greg upset about "peace, love, linux"
In-Reply-To: <20010625112955.E32027@zgp.org>
Message-ID: <Pine.LNX.4.33.0106252106050.1169-100000@mulix.oas.a2e.de>

> > patenting of software.  In the US, we have spent the last forty years
> > gradually eliminating the illogic of software copyright (i.e. software
> > is all functional and process and method, which is explicitly banned for
> > copyright protection under US laws - I am not sure what the laws are
> > in Europe).  All because IBM does nothing but help IBM.
>
> So are you proposing that software be patentable, but _not_
> copyrightable?
>
> That's an interesting point of view, but isn't it only meaningful if
> shrink-wrap licenses are invalid?  In accepting a shrink-wrap
> license you sign away your rights to copy (and in some cases even
> comment on) the software.
>
> If shrink-wrap licenses are enforceable, the copyright status of
> the software doesn't matter.
>
> (I tend to agree with the Bernstein v. US Dept. of Justice ruling
> that source code is speech, and I think it follows from that that
> it should be copyrightable.)

Copyright can apply to any act of copying, irregardless of whether the
object is functional/usable, and even irregardless of whether it is
a speech or information structure.

I know of one company that tried to scare off imitators in Taiwan from
cloning its mechanical engineering product.  Although they had patents,
they didn't manage to enforce them in Taiwan.  Finally they used
copyright, successfully this time.

In many countries (e.g. Germany) anti-copying provisions for mechanical
prodcuts would be subsumed under competition law because copyright is
limited to speech expression.  But that is only a matter of how the
particular legal system is constructed.  In Germany copyright was very
narrow in the past but has in the 80s and 90s been gradually broadened to
include all imitation behaviour concerning software, including copying of
functionalities.  The problem is only that copying of functionalities is
hard to prove, which is why in practise copyright is again limited to the
expression, where copying tends to be easy to prove.  But again, this is a
question of details of material law, which can be fine-tuned in many ways.

The idea that "copyrighting software is illogical" is again completely
illogical boasting of someone who needs to pretend that he represents some
"scientific" authority, just because he will lose in any non-authoritarian
philosophical dispute.

I wish we could get started translating the "Dispositionsprogramm" verdict
of 1976 into English.  That also has a very nice passage about the
separation of patent and copyright / competition law.  Moreover it says
that the fact that one of these rights is unable to appropriate a
functionality or some other object which the applicant may wish to
appropriate for himself can in no way be taken as an indication that the
law in question offers only "insufficient protection".  On the contrary,
it can be taken as an indication of the legislators will to keep certain
aspects of software in the public domain.

I must always admire the wisdom of those judges and the beautiful flow of
words that this wisdom made possible.  You can feel by reading that
verdict and comparing it to later verdicts how far our law system has
fallen intellectually (not to mention such intellectual levels as the one
at which Greg is bragging in this forum).

--
Hartmut Pilch                                           http://phm.ffii.org/
Protecting Innovation against Patent Inflation	      http://swpat.ffii.org/
80000 signatures against software patents         http://www.noepatents.org/




