fsl-discuss refuting greg on copyright

[PILCH Hartmut <phm@a2e.de>]

Greg is again and again spreading his theory about the inadequacy of
copyright (and adequacy of patents) for "protecting" software in all kinds
of mailing lists. Here is a fairly interesting reply from someone
experienced in these debates, which recycles an older reply.

It should appear on

        http://swpat.ffii.org/players/aharonian/

soon.

---------- Forwarded message ----------
Date: Sun, 23 Jun 2002 23:28:46 -0700
From: Karsten M. Self <kmself@ix.netcom.com>
To: fsl-discuss@alt.org
Subject: Re: [fsl-discuss] The general impotence of software copyright

on Sun, Jun 23, 2002, Gregory Aharonian (srctran@world.std.com) wrote:
>
>      In light of the recent discussions here on the role of copyright
> in open source and things like GPL, it seems to me to be worthwhile to
> point out just how impotent copyright is for protecting software (as
> then are any licenses based on copyright), an impotence that would be
> exploited in any lawsuits if things like GPL ever get into the courts.
> Attached is an article I have written on the sorry state of the theory
> of software copyright over the last thirty years.
>
> Greg Aharonian
>
>
>
>              DECONSTRUCTING SOFTWARE COPYRIGHT, 30 YEARS OF BAD LOGIC
>                                  Greg Aharonian
>                           Internet Patent News Service
>                         San Francisco, CA   415-981-0441
>          (latest version at www.bustpatents.com/aharonian/softcopy.htm)
>
> For over thirty years, software copyright has been a succession of
> court cases and law review articles based on bad law, bad logic, bad
> mathematics, and/or bad physics (Benson, CONTU, Whelan and Altai being
> all of these).
>
> What follows is a list of over 90 Acts, decisions and law review
> articles I will be critiquing in the review.  A small number of cases
> are from Asia and Europe, which inherited the problems of the US
> cases.
>
> Some cases deal with patents, for two reasons.  One, any decision
> detracting from software patentability feeds and supports
> copyrightability.  Second, the 1992 Altai case introduced a test for
> software copyright that is nothing more than some patent procedures
> without claims but using different words.  The two domains have become
> one, and should so be discussed.
>
> At the end, I attach a list of decisions/articles that I like for the
> most part, for their attacks on software copyright and
> non-patentability.
>
>                               ====================
>
> CASES RULING AND PAPERS ARGUING, INCORRECTLY, SOME OR ALL OF SOFTWARE

<1548 lines snipped>

Recycling my own comments from a previous occurrence (Nov 2001) of this
post of Mr.  Aharonian's other lists I monitor.  My criticisms of seven
months ago still stand:

    I'm unimpressed and unpersuaded.

    Greg Aharonian has been floating this around a few lists recently.
    It's an interesting compendium of some relevant case law and other
    citations.  Greg wants to make the case that computer software
    should not be copyrighted, and that it should instead be patented.
    He follows somewhat Pam Samuelson in this regard, though her level
    of scholarship is far higher.

    The conclusions Greg draws may be of some interest.  They're not
    very well accepted by the mainstream.  His commentary is brief to
    the point of obscurity (fewer cases with more notes would be
    preferable), and his editorial slant is broadly present.

    His presentation is partial, and in cases misleading.  E.g., In SAS
    v.  S&H Systems, he neglects to mention that there were several
    instances of direct quotation of nonfunctional SAS code by S&H.  The
    intermediate copy S&H produced in the process of reverse engineering
    the program was held to be infringing, though it likely would not be
    by current standards.

    There are also some blatant omissions from the record.  In
    particular, Sega v. Accolade, Atari v. Nintendo, and Sony v.
    Connectix, all of which establish the clear separation of coverage
    for functional and expressive aspects of copyright in software.

    Examine, but critically.

The list is a reasonably comprehensive (though selective) selection of
caselaw relevant to software and copyright issues.  It's worth reading
on this basis.

Greg is correct in that copyright offers thin protection for software.
However, that protection is broad, is readily attainable, and can be
utilized with both reasonable costs and high probability of success by
the "little guy".   At the same time, scope is defined such that claims
broadly exceeding the scope of an author's original work are not
possible -- this being the primary complaint against patents in
software.  As a legal framework to be used as the basis for creating
tools serving the free software community, copyright is admirably
suited.

...

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
120,000 signatures against software patents      http://www.noepatents.org/