GregNews stepping up EP lobbying effort

[PILCH Hartmut <phm@a2e.de>]

GregNews comments on

        http://www.linuxinsider.com/story/40676.html

(one of many pro-patent articles found recently in "Linux Insider" --
if you have an idea on what stands behind "Linux Insider", you might
want to document it under http://wiki.ffii.org/LinuxInsiderEn) and
announces reinvigorated efforts to rant against copyright and
against efforts in the EP to limit patentability.

-------------------------

I put some time into writing the following.  I appreciate criticisms of
any mistakes since I would like to distribute this more broadly.

Greg Aharonian
Internet Patent News Service

    -  IP LAWYER CRITICIZES OPEN SOURCE'S ANTI-PATENTING/PRO-COPYRIGHTING

A recent article about the software patent debate in Europe "The Fuzzy
Software Patent Debate Rages on" quite nicely addresses the dubiousness
of resting open source licenses on copyright. The article is written by
Heather Meeker of the law firm Greenberg Traurig.  She is also co-chair
of the Open Source Committee of the Science and Technology Section of
the ABA (as opposed to teaching at Columbia University).

Some quotes from her article, which is not critical enough (every now and
then, lawyers don't have to be polite):

        It would be neither original nor controversial to observe
        that copyright is an awkward scheme to protect computer
        software.   ....

She is referring to a large number of court decisions greatly restricting
the scope of copyright in a computer program, and law review articles
condemning most, if not all, of computer program copyright (both sets
of materials of which are rarely, if ever, mentioned to open source
programmers by their open source lawyers).

        Copyright protects expression, not ideas.  But software is
        not really all that expressive. ....  This makes protection
        of software via copyright trick, because functional elements
        or ideas are not protected -- only expression.  Not
        surprisingly, actually identifying software copyright
        infringement is like reading tea leaves. ...  The serious
        [software] copyright battles are over the copying of bits
        and pieces, structures, design elements and so forth ---
        and applying copyright law to those cases is difficult,
        expensive and unpredictable.

Yes, the infamous metaphysical idea/expression dichotomy as applied to
software - difficult, expensive and unpredictable (sounds like vague to
me) - that is what GPL wants to rest on?  A comment on dealing with the
type of infringement issues that GPL will eventually face:

        Easy as pie, huh? [describing the Altai tests].  And if you
        aren't in a circuit that uses this test, like the second,
        ninth or tenth judicial circuit, the law could be different.
        And you [programmers] know which judicial circuit you are
        in, don't you.  Don't you?

Yes, one of the idiocies of software copyright - there is no national
legal explanation of what is copyrightable about computer programs.
Computer science has the same scientific axiomizations across the 
country - the law should be national as well, not circuit dependent.

Her next comments really express [financially] the dubiousness of software
copyright law.

        But basically, [patent infringement analysis is] a more
        predictable process than engineering around a copyright.
        How do I know?  You can hire a lawyer to write an opinion
        of whether a product infringes a patent.  You can find
        such a lawyer in the yellow pages - I am not kidding, you
        can.  That lawyer can even be legally liable if his
        opinion is wrong.  But you say you want to hire a lawyer
        to write an opinion on whether a product infringes a
        copyright?  Good luck with that.  People who read
        [copyright's] tea leaves don't give guarantees.

That's right, what she is saying is that software copyright law is so
legally pathetic, so crappy, that you can't even pay need-billable-hours
lawyers to give you an opinion.  Would any lawyer have bet their money
on the outcome of the yes-it-is-no-it-isnt-copyrightable Lexmark decision?
I doubt it. So, Europe wants to abandon software patents for this nonsense
in the copyright world?

--
Hartmut Pilch, FFII.org, Munich Office +498918979927, Brussels +3227396262
Data Processing is not a Field of Technology        http://swpat.ffii.org/
380,000 Votes + 3000 CEOs against Software Patents  http://noepatents.org/