Source Code & Copyright

cunamara writes "Patently-O has posted a discussion of Aharonian v. Gonzales . Aharonian is trying to build a database of source code as a repository of prior art. The interesting thing is in part of the decision, which is that "Conversely, if plaintiff independently creates software that is functionally identical to other software, he does not infringe any copyright on the other software's source code, even if his independently created source code is nearly identical to the copyrighted source code." Interesting. But how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?" I'm actually not as interested in the copyright side of things as I am in the notion of using something like that for prior art of software patents. The argument that source code is uncopyrightable, with some extensions could be applied to almost all, say, fiction stories since no one's written a truly new story in like five thousand years.

The status of the case

[Anonymous Coward]

Dismissed. The case is now on appeal.
The idea that something may not infringe copyright in spite of the fact that it is nearly identical, is a bit of a stretch. It is true sometimes. For instance, if there is a standard way of doing things then bits of code will be identical. On the other hand, for those bits of code that may be copyrighted, the statement sounds nonsensical. Remember, not all code can be copyrighted. Much/most/all the code SCO claimed was in violation of its (disputed) copyrights is not copyrightable.

Not in java?

[Chris Pimlott]

Er, what's wrong with java.util.LinkedList?

The Phoenix BIOS experiment

[Richard Kirk]

Usually this sort of discussion relies on hypothetical arguments. However, there are real cases where software has been created under controlled conditions, and then analysed for similarity. The Phoenix BIOS was written by people with coding experience but with no prior knowledge of the BIOS used in the IBM PC. They were given a functional description of what the BIOS should do. Care was taken to ensure they could not reverse engineer the IBM BIOS or directly compare their code to the IBM code.

What they wrote ended up having large bursts of code that was identical to the IBM PC BIOS. Sometimes there is only one good way of doing something.

Well, this is what I remembered reading years ago. It was an unusual exercise because the actual amount of code was small, so the potential legal cost per byte was very high. If there is someone out there who actually was part of this project, maybe they can post their experiences, and say whether I have got it vaguely right.

Re:Prior art is on the burden of the copyrighters

[ThePhilips]

I haven't heard of any case where copyright was involving prior art defense.

Normally it's related to patents.

IOW. Person A written Program A to do the Task A. Person B written Program B to do the Task A. If task is the same there are very chances that the programs will be quite similar.

Now, from point of view of copyright law there are two absolutely different programmes - implementations of probably the same algorithm to solve the Task A. (Competition is good, isn't it?)

But, when patents get's involved, picture becomes more obscure. If Person A holds a patents for the algorithm of Program A (and since patents by definition "transcends it all" and disregards copyrights) implementation of Program B whilst having no relation to Program A nor to the Person A is in legal crux. (Here prior art starts playing role.)

Copyright protects person's work. Patent protects person's idea.
Two people might have come to the same idea (first to come entitled for the protection). But how it could be that two people independently made the same work? (e.g. book, picture, poem, etc) It's lunatism or what???

Specifically, when applied to software, prior art make no sense whatsoever. Modern obfuscation tools allow people to mask the original code. Was it stolen or written from scratch - one would never guess. (Obfuscators are normally applied to commercial Java programmes to make reverse engineering harder).

P.S. In my experience, when two commercial programs have same peice of code, it usually means that it was lifted from BSD. I yet to encounter single example when one software company stolen something from another. Average quality of commercial code is quite low - it's not worth been stolen. And when you see clean, well made code, rest assured: people behind the code are connected to Open Source. Open Source has to have higher quality - just as in normal life you would try to *NOT* show anybody you dirty undies.

Thank you maxwell

[weierstrass]

and thank you Hemos for displaying your ignorance on the front page.

This is exactly the crucial difference between copyrights and patents.

A copyright restricts you only from copying the work in question. There is absolutely no restriction on coming up with the same work independently, and using it. Thus like George Harrison's suit mentioned in the sibling post, many copyright suits depend on showing that someone did / didn't have access to the work in question.

A patent on the other hand gives the holder the exclusive right to an invention or idea. Like the other guy who invented the telephone independently of Bell, you will have absolutely no rights to your own invention if it has been previously patented, for the life of the patent anyway.

A defence of independent discovery works for copyright infringements, not for patents. This has always been the case, so I'm not sure why it's news today.

Copyright in a nutshell

[n8ur]

1. Copyright exists from the moment of creation, regardless of whether the work is ever published, and regardless of whether there's a copyright notice. Formalities like including the notice and filing a registration can be very helpful, particularly if you want to sue an infringer and collect money from him, but they are necessary for the existence of the copyright.

2. The copyright holder enjoys five exclusive rights over his creation: the rights to copy, distribute, display, perform, and create derivative works. Derivative works include modifications, translations, etc. He can grant licenses to others to allow them to do any combination of these things. Running software mainly falls under the right to copy since you need to copy the work into temporary storage in order to use it. The GPL focuses mainly on the right to distribute.

3. Slightly oversimplified, the test for copyright infringement is access to the work plus "substantial similarity." If you had access to the original, and produce something substantially similar, the burden shifts to you to show non-infringement. If you didn't have access to the original, no infringement. Period. If the two works aren't substantially similar, no infringement. Period. Of course, the legal and factual determination of what constitutes substantial similarity is where it gets interesting.

4. Copyright does *not* protect ideas, only the *expression* of ideas. If there's only one way to express an idea, you can't copyright that expression. An example is a language (computer or otherwise) -- since the idea behind the language and the way it is expressed are inextricably linked (i.e., the vocabulary, grammar, and syntax), the idea of the language and its expression are said to have merged, resulting in no copyright. APIs often fall under this analysis as well -- if there's only one way to interface to a system, that interface may not be subject to copyright.

5. "Fair use" is a defense to infringement -- it applies where the court finds (based on a number of factors enumerated in the copyright act) that the infringement was excused because the social good resulting from the infringement outweighs the harm to the copyright holder. Except for the relatively few areas where the Supremes or enough circuit courts have made a ruling (as in the Betamax decision), you never an absolute guarantee that fair use will apply; it's always a roll of the dice based on how a court weighs all the factors.

(Note: the above is all based on US law. Most countries are roughly similar, but there are differences.)

Re:Diversionary Rubbish

[Anonymous Coward]

The grammar Nazi's might bemoan it, but the use of "like" in the article summary was more effective than if Hemos had used an exclamation mark. For example.

        No one's written a truly new story in like five thousand years
        No one's written a truly new story in five thousand years!

In the first sentence, it's clear that the emphasis is on "five thousand years", as the author intended. In the second it is not clear where the emphasis is. Is it on the "truely new story", "no one's", "written". Is the entire sentence meant to be taken as exclamatory?

That is the most contrived defense of sloppy grammar I've ever, like, read.

It had nothing to do with emphasis; it was just the in vogue bastardization of "like" to mean "approximately", or "circa", or "about", or "around".

"Like" should be used to point out similitudes in otherwise different things, but not to mean "nearly, but not quite", or for emphasis:

Right: "She was large, like a prize heffer".
Wrong: "She was like two hundred pounds."
Wrong: "She was, like, fat."

People aren't using "like" flippantly for no reason. Sometimes it is used like "umm" and "aaa", but sometimes it is, like, very useful in emphasising certain sections of the sentence. OK?

They're using "like" because they're lazy or ignorant or just because everyone else is doing it, and no, it's not okay. As has been pointed out, we have typography and punctuation to provide emphasis where required. We also have several perfectly good synonyms for "approximately", if you can't be arsed to say or type that many syllables.

Re:Literature is not source code...

[maxwell demon]

The key is tail call recursion, although I admit the way I've written it isn't ideal for it because there's an operation after the call; I'm not sure if a realistic optimizer could optimize this well. An explicit tail-recursive version would be:

int sumArrayPlusConst(int* array, int elements, int initial)
{
  if (elements == 0)
    return initial;
  else
    return sumArrayPlusConst(array + 1, elements - 1, initial + *array);
}
 
int sumArray(int* array, int elements)
{
  return sumArrayPlusConst(array, elements, 0);
}

This can trivially be converted to the iterative form by an optimizer using tail call recursion optimization.

Re:What is wrong with java.util.LinkedList

[Tim C]

Well, for one thing the fact that it uses an implementation as the abstraction. The collections should have been things like set, ordered set, fifo sequence, etc... Furthermore they should have been interfaces, not classes.

You mean like the List, Set and Map interfaces?

Re:Prior art is on the burden of the copyrighters

[Anonymous Coward]

I yet to encounter single example when one software company stolen something from another.
Cadence vs. Avant, the stolen code lawsuit lawsuit was settled for $265 million.

Re:Copyright in a nutshell

[Pofy]

Nice summary, just some small commentsa on your final statement:

>(Note: the above is all based on US law. Most countries are roughly
>similar, but there are differences.)

One area of such difference that is actually relative significat is the one of derivative work were the protection in many countries are significat differencet or reduced. An example would be Sweden were anyone can create a derivative work and would actually be the copyright holder for that derivative work. The restriction is still there though in that your rights for distribution and all other rights are still restricted the same way that you would be with the original work. Typically this means you can't do much with it but you can never the less create derivative works, use them and under the variant of fair use we have, also make limited copies, distribution and such. And the copyright to it would belong to the one making hte derivative work.

Another area that differes quite a lot between countries is what you touch under point 5, the "fair use" which is handled quite differently in many countries, it can either be almost non existant or be in the form of more specific exceptions to the exclusive rights (instead of the "test system" used for fair use in US). For example, again taking the Swedish copyright law, it specifically allows you to make a few copies for private use. This includes making a copy and give to a friend for example. No need for any test, and no way to not allow it and so on. At the other end, it seems, there is (based soley on readin in various forums) any such fair use right at all, at least not for copying, in say the UK (I can be wrong though).

Other than this, I tend to agree that it is otherwsie more or less the same in every country but the above variations can be good to know about when discussing copyright on the net.

Re:Copyright in a nutshell

[mark-t]

For example, again taking the Swedish copyright law, it specifically allows you to make a few copies for private use. This includes making a copy and give to a friend for example.

Canada also has an explicit exemption from copyright infringement for private use copies, but those private use copies must be made for the sole use of the person that actually made the copy (giving away or in some way distributing to anyone else any copies that may have been previously afforded under private use invalidates the exemption). Intent on the part of the person making the copy is considered very heavily here, and would be based on the circumstances surrounding the unauthorized copies distributed.