a computer program is not a patentable invention
in [Embedded]
|
Prev: Which way to go?
Next: Named RTOS objects
From: Jon Kirwan on 18 Apr 2010 02:23 On Fri, 16 Apr 2010 15:21:01 -0400, Walter Banks <walter(a)bytecraft.com> wrote: >"tim...." wrote: > >> "David Brown" <david(a)westcontrol.removethisbit.com> wrote in message >> news:4bc84f50$0$1993$8404b019(a)news.wineasy.se... >> > People can license all or part of code under whatever terms they want - >> > patents don't have to be involved at all. Copyright is what gives you >> > protection and lets you enforce these licenses. >> >> You cannot copyright a "method" only the exact textual solution is >> copyrightable, >> >> for example: if it were possible to patent your "code" for addition then >> x = a+b and x = b+a would be covered by a single patent. >> >> but if you copyrighted it and you code was >> x=a+b >> >> then someone else can write x=b+a and would not be in breach of your >> copyright > >This is a common misconception I think that if you intended get >around a copyright you will probably find that the copyright was >violated. > >A common copyright violation in the early days of personal >computing was to recompile the PC's Boot ROM's (IBM >published the source) with the functions in a different order >and the memory tests deleted. This was found to be in >violation of the copyrights. Any substantial copy ot it should be in violation, unless it is for educational research purposes or personal use. So I guess it is good it worked out that way. >You can violate the copyright of a novel just by using the >same plot lines. The same plot lines are reused over and over again. It's been said that there has been nothing new under the sun for many centuries, now. Probably true. So far as I'm aware, only a particular expression of an idea can be protected. Not the idea itself. Case law examples I've see consistently hold that basic plot, settings and stereotyped characters are not protected. Various story devices are not and cannot be protected by copyright as they are in a public commons of literary techniques. Spielberg's Amistad and the ensuing plagiarism law suit illustrates a boundary. An author, Chase-Riboud, was flown to LA to discuss the optioning of her novel, Echo of Lions. The court determined that DreamWorks didn't violate her copyright, though, and that the plaintiff couldn't 'sustain' her burden of proof as the book contained a love story that was different from Amistad. They were quite similar on most other accounts, though, according to what I've read about this case. Software is a different medium, though. The plot devices used in novels, such as "the butler did it" or a "sympathetic mobster", etc., that aren't protected are quite general and probably not protected at all with books, even if the story had the butler do it _after_ meeting the sympathetic mobster just like another story did. Yet, in software, perhaps the use of a standard deviation algorithm right after the use of a sort routine _might_ be protected? Or not? I don't know. But I think the courts did, and my still, have some trouble parsing all this, correctly and well. I doubt they are in nearly as good a position to make judgments on these topics and I suspect that law here is less well controlled by the judges and more controlled by the money funding the cases. >You can violate the copyright of a >photograph by using similar composition. Example, please. This sounds almost crazy to me and I'd like to see just how "similar" you mean to suggest here. >There are real teeth in copyrights if they are exercised. Look at >some of the judgements in the music and movie industry. It >is not just a copy and on line distribution it extends to music and >musical arrangements. But you just gave a case, Walter, where copyrights __were__ exercized. The BIOS case you talked about. So your _if_ is already in hand. Your implication is that they aren't, yet you provide your own contrary evidence. >The screen play for Avatar is on line. Completely re-writing >the dialogue into gaelic and changing the location to Greenland >using snowmobiles for transportation would probably be a >copyright violation. Hmm. Considering Amistad and Echo of Lions, I wonder. I'm not sure I fully take your assertion, just yet. Jon
From: Jon Kirwan on 18 Apr 2010 02:29 On Fri, 16 Apr 2010 06:18:39 -0400, Walter Banks <walter(a)bytecraft.com> wrote: >Jon Kirwan wrote: > >> On Thu, 15 Apr 2010 22:22:46 -0700, I wrote: >> >> >I wasn't thinking so much about analogy to other business >> >areas _within_ the North American continent, but to the same >> >business areas outside of it. Which is why I asked though >> >you had provided such examples. > >Your questions caused be to think about the differences between >software patents and copyrights. To use a clearer example. >Remember I am not a lawyer but this is the way I understand >it. > >Assume that while writing a math package you discover a >completely new new way of doing a square root. You register >the copyright for the math package and you patent the method >you used to do the square root. > >You now have full control of the duplication and distribution >of the math package and if anyone copies it in whole or in part >you have various legal recourses including damages. > >The square root patent on the other hand could be used in many >math packages and applications. You could then license individual >companies to use it and by agreement receive compensation. > >Where this gets murky is what would have happened if you only >copyrighted the math package. After 15 or 17 years you would >still have the copyright and presumably be able to enforce the >distribution in whole or in part. That would mean someone >who only wanted to use the square root part would need to >come to an agreement with you to be able to do so. > >That is why I made the comment about "protection with teeth" >it takes a long time for the material that is copyrighted to >be in the public domain. The damage awards in the music industry >are examples of just how significant copyright violations can be. > >Software patents started to be issued at a point when the software >industry was very young and it wasn't clear if what was important >was process pieces which could be bought and sold like the >components of a library or the complete works like na spreadsheet. I remember the period and some of the debates that raged at the time and, vaguely, the reasons why some software vendors wanted control. At least, what hit the general newspapers at the time. What I saw in the papers was that end users sold their software to someone else when they didn't want the software anymore, or rental companies would buy the software and rent it out, and the vendors wanted to make both situations impossible, somehow. In fact, it was especially in the case of rentals that there was a LOT of argument going on at the time. >As recently as the mid 80's software tools commonly licensed >libraries as a separate document from the translation tools. There >are still some library only companies out there. None of this yet addresses itself to situations where the lack of software patents has led to "protection with teeth" in the specific case of software. And you cannot seem to avoid hauling in the 'music industry' when struggling to press your hypothesis. I don't mean that negatively, but I am simply unable to port that into this sphere of seeing this in terms of software. That may be my own lack of imagination. But there it is. There are too many differences in medium, market and market history, and I'm sure this lack of similarity also applies to past case history, contract law, and torts, and the preparation of courts and judges to make well-informed findings, as well. In any case, I just can't get see your assertion regarding software protection getting stronger by removing software patents. Copyright already exists in the US. It is also enforced, as well. You, yourself, gave an example of this in another post. Patents are, as another poster mentioned, a veritable mine field (and besides that, I already have taken the opinion that patents no longer have much value to anyone other than large companies, anyway, these days.) What would help is a showing from a developed country (in the EU?) where a similar outcome followed as you say it would, with details in evidence, as you assert would occur here in the US. Namely, where the lack of patents there has led to _stronger_ protections with more teeth in them than here in the US, as a total picture. To be frank, I think the combination of patents AND copyright in the US has more teeth than copyright only and I cannot see how the removal of software patents would put MORE teeth into a situation. Copyright is one method for some domain, patents are another method of another domain (possibly overlapping in areas) and the two, combined, is more than either alone. Even after the courts have a hand in it. Perhaps I'm not communicating well and am just blind enough that you cannot seem to reach me, either. It's a chasm I can clearly notice, but cannot clearly see how to bridge. I know you were trying to make a clear point that others would understand well enough. Maybe others got it and I am just not smart enough to do so. I wish I were better able to follow your point. Jon
From: Hans-Bernhard Bröker on 18 Apr 2010 08:42 Walter Banks wrote: > That is why I made the comment about "protection with teeth" > it takes a long time for the material that is copyrighted to > be in the public domain. Actually, there's a strong on-going campaign by movie studios and music publishers, particularly in the USA, to change that "long time" into "forever". And if they ever get their wish, that'll be an outright disaster.
From: Hans-Bernhard Bröker on 18 Apr 2010 08:44 Walter Banks wrote: > You can violate the copyright of a novel just by using the > same plot lines. If that were actually true, pulp fiction wouldn't exist.
From: David Brown on 18 Apr 2010 10:35
Hans-Bernhard Br�ker wrote: > Walter Banks wrote: > >> That is why I made the comment about "protection with teeth" >> it takes a long time for the material that is copyrighted to >> be in the public domain. > > Actually, there's a strong on-going campaign by movie studios and music > publishers, particularly in the USA, to change that "long time" into > "forever". And if they ever get their wish, that'll be an outright > disaster. Copyright in the USA (with other countries following on obediently) gets extended every time Mickey Mouse is nearing the public domain. Copyright lengths (and patent lengths) are already a disaster - it's just a question of how much worse they can get. I don't really object to people having rights over their creations and who can copy them - I can't see how there is any moral or ethical justification for these rights being valid 70 years after the author/creator is dead. |