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.

Reminder

[Anonymous Coward]

Mathematical formulas are not copyrightable.

Next !

This is surely irrelevent?

[NigelJohnstone]

The problem with software patents is not copyright it's trade secrets. The source code is never released, so no database of prior art can cover any closed source software. The more innovative the algorithms, the more likely it will be strongly protected with tradesecrets and the less useful a prior art database would be.

Not only that, the source code isn't always a good description of an algorithm which is why every project I've ever worked on has lots of comments and documentation delivered with it.

So I don't see what the point of building a database of prior art actually achieves! How is it different from the GNU libraries? They're partial coverage of software available in sourcecode form too.

Re:Copyright is not universal

[blakestah]

If every bit of code was copyrightable, even a "Hello World" program would be a copyright infringement if it were copied out of a book and posted to the web. In this context, it is easy to see that not everything is eligible for copyright.

Every bit of originally created source code is copyrightable...although in many cases code is copied from a public, common, source, like "Hello World".

For infringement to take place, you need to demonstrate that copying took place, that is, that the accused copier had access to the original and used it. Even if the source code is nearly identical, it does not mean there was infringement. You need to establish the copier had access to, and used, the original to create his copy.

I'm not sure a repository is useful for copyright issues. Those are proving minor, anyhow. For patent issues it would be very powerful, but there is another problem. The USPTO doesn't check outside the application and patent database. That is, if something HAS prior art, but that prior art is not patented or included in the application, then the patent examiner will grant the patent anyway in ignorance. The burden then falls on the holder of the prior art to establish that it is prior art. Which means hiring lawyers, litigating a case, etc. It is a PITA. And this is one of the principal ways the system is borked. Patent examiners have no means by which they can access prior art that is not in the system.

Re:The status of the case

[maxwell demon]

Well, the point about copyright is about copy. If someone who never heared about Harry Potter would sit down on himself and write a book which turns out by pure chance to be word for word identical to the existing one, it would not be copyright violation. However, it's very unlikely than anyone would believe him, because it's very unlikely that this would happen.

Basically in copyright cases, the difficult part is to proof or disproof that there was indeed a copy involved. The similarities are important because they are indications for or against copying. The additional problem with changed copies is of course to determine how much of the changed document is really copy, and how much is just using the concepts. That's also the point of clean-room reimplementations: By doing so you give evidence completely separate from the produced work itself that the work itself isn't a copy, but just a reimplementation of the same concepts.

IANAL however.

Why is this such a difficult concept to grasp?

[stubear]

Copyright protects the expression of an idea, not the idea itself. It is the expression of the idea which creates value for the copyrighted work. Anyone can write a 4-bar blues progression in a-Major, just don't rip off B.B. King's lyrics or melody while you're doing it. We become richer, intellectually, as a society when creators are forced to think beyond what's already been done, to create their own expression of common cultural ideas, not by letting a bunch of hacks monkey around with things which they would otherwise not be able to create on their own.

Re:Solution

[Anonymous Coward]

The problem is that people who do understand complain in internet forums like Slashdot. You are an example of this.

Most politicians don't read what you write. Most people don't read Slashdot. The few politicians who do read what you say, know that "normal" people don't, so they ignore you.

There are 4 effective actions you can take.

• Write letters to the papers.
• Write letters to the politicians
• Call the politicians. You might at least talk to an assistant
• If that doesn't work, organize a demonstration, so that news media will notice you.

By "letters" I mean regular letters made by paper. The e-mails WILL be ignored.
I would do it my self, but as I am not American, my views don't count :-)

Start small, influence your friends to do the same. Use the internet for organization and information, but keep all communications to the people who matter out of the net. No-body cares about petitions on the net, but when they get 500 sheets of papers in their mail, they will

Copyright the WORK, not the source

[PFI_Optix]

You can't copyright a particular method of playing guitar. You can't copyright a process in writing a song. You can copyright the song itself, though. That is the end product of a creative process and should be considered unique to the artist.

As that relates to code, the code itself should not be copyrighted. In programming there are only so many ways to arrive at the same solution (sometimes), and copyrights could potentially remove ALL of those apporaches as options. The finished work should be copyrighted and protected in ways similar to music copyrights.

With music, if another artist clearly uses elements of the song in their own work without permission, it can be considered infringement. Software should be treated the same way. A user interface, a particular structure, and novel ideas should be copyrightable. It's the end result that is the work, the source is part of the creative process.

Re:Why is this such a difficult concept to grasp?

[plasmacutter]

::::not by letting a bunch of hacks monkey around with things which they would otherwise not be able to create on their own.

and yet there's that famous quote:

"If I have seen further it is by standing on ye shoulders of Giants." --Isaac Newton

I guess Newton was a simmian hack by your bounded thought.

Re:You'll find all the stories ever told

[KeithIrwin]

I'm really tired of hearring people claim that there aren't any new stories written. It shows a basic ignorance of literature. I don't know if the purpose of such remarks is to dismiss modern literature as redundant or just some sort of glorification of the past or perhaps even to explain why the person makingt he remark does not bother to write original stories, but regardless, it's crap.

The simple fact of the matter is that although many common human stories have been told and retold for ages, there's a great volume of significant new work which is not about the retelling of old stories. Here's a list of works which I challenge anyone to find an older story which can reasonable be classified as being in any sense the same story.

Invisible Man by Ralph Elison
Catch 22 by Joseph Heller
Closing Time by Joseph Heller
The Hitchhiker's Guide to the Galaxy by Douglas Adams
Watchmen by Alan Moore
V for Vendetta by Alan Moore
Scud: The Disposable Assassin by Rob Schrab
Stuck Rubber Baby by Howard Cruse
The Time Machine by H.G. Wells
The Sound of Thunder by Ray Bradbury
Nightfall by Isaac Asimov
R.U.R. by Anton Capek
Fooly Cooly

And that's just a quick listing of what I could come up with off of the top of my head. So, before you make that claim again, answer the list. And no dodges. You can't simply claim that a story about hunting is sufficient for The Sound of Thunder, for instance. The principle idea of the story is not "some guys go hunting". It's about how small changes in the past can affect the future in a large way. You don't need another story which matches in every detail, but it must cover the fundament of the story.

Keith