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Source Code & Copyright 182

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.
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Source Code & Copyright

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  • by thedletterman ( 926787 ) <> on Monday February 20, 2006 @08:31AM (#14760253) Homepage
    I'm not a big fan of "near-identical" copyrighting source code.. It's almost like copyrighting mathematical equations. The compiler creates a framework designed to achieve predictable results, and whatever results are achieved within that framework, isn't the invention of genius, but the application of an engineering language. It's cclearly wrong to rip off chunks of people's programming and sell it as your own, but if there's proof of linear progression of programming which achieves a similiar function using a similiar process within the programming framework, there's no reason the other's work should be thrown out, or licensed against the 'prior artists'. Intellectual property is going to be such a freaking headache if shit like this is allowed to continue.
    • I'm not a big fan of "near-identical" copyrighting source code.. It's almost like copyrighting mathematical equations.

      It's not just like it. It is copyrighting mathematical equations, or more appropriately, mathematical algorithms. All software is a mathematical algorithm.

      Of course, publications containing mathematical algorithms are copyrighted every day. Papers, books, lecture notes, etc, etc. But to argue that if I've used a Fourier Transform in my paper means you can't is obviously a fallacy. To argue
    • Keep this in mind:

      Patents are for processes, formulas, protocols, new ways of doing things.

      Copyrights are for the expression of ideas in a creative context.

      The threshold for copyright is a "minimal degree of creativity"

      Whereas the threshold for a patent is quite high of a "novel inventiveness"
      • The threshold for copyright is a "minimal degree of creativity"

        But this is where it gets interesting... how much creativity does it take to rename variables, rearrange some independent statements? I'm not saying that this is the only way (or even that this is a common way) that applications with similar functionality have similiar source. But I'm sure many people here can write a simple script to make these changes for them. Your functionality is the same, your source code is only "nearly" identical (that i

        • I have studied copyright mostly in regards to music and recording (I'm an audio engineer).

          Unfortunately I don't have a firm grasp on how copyright affects one's code.

          If you are interested, you should check out the concept of the design/utility dichotomy in regards to copyright law.

          In your writing/Hemingway example, your work would be a new work based upon the fact that the layout is a creative element, however it would be based off of a derivative work.

          My copyright law professor would often say "it isn't wh
  • by bitkari ( 195639 ) on Monday February 20, 2006 @08:32AM (#14760256) Homepage
    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 idea is not what is protected under copyright, it is the work itself which is protected under copyright. Just because the idea implemented in a story (or computer program for that matter) has been done before, that does not mean that someones actual book, movie or videogame is somehow immune from copyright.

    Patents, on the other hand... Well, let's not get started on patents...

  • Solution (Score:5, Interesting)

    by Elektroschock ( 659467 ) on Monday February 20, 2006 @08:32AM (#14760258)
    The solution for the software patent mess is not "prior art" or "inventive step". These are red herrings of the debate. It is better to follow the Adelphi Charter [].

    3. The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition that is essential for economic vitality and the monopoly rights granted by intellectual property laws.
    4. Intellectual property protection must not be extended to abstract ideas, facts or data.
    5. Patents must not be extended over mathematical models, scientific theories, computer code, methods for teaching, business ...
    * Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people's basic rights and economic well-being.

    For US citizens it important to get organised. FFII has an USA mailing list []. Perhaps it might serve as a breeding ground for a US campaign which becomes equivalent to the EU campaign effort. Americans are perfect communicators in the field of software patents but lack anti-swpat organisation.

    Currently the rest of the world suffers from the American unability to get anti-Software Patent interests organised.

    • by dpilot ( 134227 ) on Monday February 20, 2006 @08:54AM (#14760327) Homepage Journal
      I fear that in today's society, the Adelphi charter is irrelevant and misdirected.
      Keep in mind the real priorties:

      1: Corporate rights shall be preserved.
      2: Corporate freedom of action shall be maximized.
      3: Opportunity for revenue and profit shall not be impeded.

      I just went to see "Why We Fight" this weekend, including a Q&A with the writer/director, afterward. To be short, sweet, and simple, it wasn't a rant against the Bush administration. They are merely the latest (and most willing?) phase in the rise to power of the military-industrial complex. The movie was a warning about corporatism, rooted in Ike's parting message about the military-industrial complex.

      In retrospect, the Free Software movement is perhaps one of the most important ones in today's world. As far as I can tell, it is the ONLY major endeavour of modern life not utterly dominated by corporate interests. No wonder there is so much interest in things like the DMCA, DRM, HDMI, TPM, etc. I suspect the fine-tuning will be to push Free Sofware into the correct corral, so it's developments can continue to be harvested, yet at the same time make it irrelevant to day-today life.
    • Re:Solution (Score:3, Interesting)

      by argoff ( 142580 )
      No, the solution is to get rid of copyrights and patent monopolies all together. The system alreasy was "reasonable" when it started out, but we are where we are today because it is the very nature of these beasts to start out with a small amount of controll and baloon into a gargantuian murderous beast.

      The people who are trying to impose copyrights and patnets understand that it's an all or nothing game, which is why they will never let a "reasonable" solution play out no matter what it is. Why is it tha
      • Re:Solution (Score:5, Insightful)

        by Anonymous Coward on Monday February 20, 2006 @09:53AM (#14760566)
        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
        • "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."

          And you see how well that worked in the lead up to the Iraq war. Now just how many people were in the streets protesting around the world? How many politicians were written? how many editorials?

          You see, that only works when politicians have nothing to lose by supporting you. In this case they lose money f
        • The system is the problem, not the solution. Unless you have a self feeding media machine that is proped up by copyrights too, your method is guatanteed to get no legal results. Using defiance, and technology, and forcing the copyright system to collapse upon itself will be a far more effective use of resources. Same thing with software patents.

          For physical patents, that will be a little harder, but new tchnology will eventually force their death too.
  • by Anonymous Coward on Monday February 20, 2006 @08:34AM (#14760263)
    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.
    • by maxwell demon ( 590494 ) on Monday February 20, 2006 @09:14AM (#14760405) Journal
      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.
      • I've got to disagree. The point about copyright is controlling distribution of a copy. Monks in a monestary could transcribe and illuminate Harry Potter to their hearts' content, but the minute they try to sell or give away that which they've copied, the axe will fall.
      • Thank you maxwell (Score:4, Informative)

        by weierstrass ( 669421 ) on Monday February 20, 2006 @10:16AM (#14760662) Homepage Journal
        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.
      • Reminds me of "Pierre Menard - Author of Don Quixote" by Borges.

        In that work, Borges posits an author who deliberately rewrites "Don Quixote" word for word. And it is said that the rewrite is "infinitely richer".

  • by Big_Mamma ( 663104 ) on Monday February 20, 2006 @08:36AM (#14760266)

    For example, there aren't much variation in ways to code a doubly linked list. If a project in java needs one, you need to write it yourself, because it isn't in java.util.* yet. With a standard coding style in that language, I've seen quite a few near identical looking implementations for an assignment.

    It's about time to stop suing over one snippet of code in a project - there are only so many ways to do the basic tasks. It's how you use the individual lego blocks to build something that counts - if you copy the whole design and claim it as your own, then you deserve to be sued, not for using five white ones to build a wall, as everyone does that.

    • Not in java? (Score:2, Informative)

      Er, what's wrong with java.util.LinkedList?
    • Ain't that the truth!

      In my Java Data Structures class in University, our first couple of assignments were exactly this sort of thing. I think the first one was a singly linked list, and out of the 100 or so students 60 *identical* solutions were handed in. For the second assignment, a doubly linked list, there was more variation but still 30 or 40 identical solutions. We'd all learned Java in the same classes, we all had the same textbook, it's hardly surprising that there was so much similarity there.

      Of co
  • Reminder (Score:2, Insightful)

    by Anonymous Coward
    Mathematical formulas are not copyrightable.

    Next !
  • Google Books (Score:5, Interesting)

    by Midnight Warrior ( 32619 ) on Monday February 20, 2006 @08:47AM (#14760305) Homepage

    Google Books [] seems like an ideal solution to this problem. Of course, I'd talk to Google about it first. Your source code repository would be transformed into book form with the source code as large excerpts and the revision control system being your chapter introductions. This would force the repository to be something organized and not just a mish-mash of inserted code. Their About [] page says that they'll show you a couple of pages. I would ask them to restrict the search to only showing the section introduction and a 15 lines surrounding the code in question. Google could then wrap an API around it to make it easy to programatically search.

    Then, there's the issue of licensing. This would be, I think, the first legitimate use of the GPL (not the LGPL) for a published document. Google promises to protect the work as a dark search until valid copyrights expire. If you put a hypertext link into each section where the code can be properly licensed (i.e. downloaded), then it works as a prior art repository and as a code reuse archive.

  • by argoff ( 142580 ) on Monday February 20, 2006 @08:51AM (#14760318)
    I think the truth is that people instinctively know that copyrights (and patents esp on software) are harmfull, and that's why there are so many legal challanges to it and attempts to reform copyright law. But the truth is that the system is not going to change.

    Rather than playing all sorts of legal tricks, I think people would be better served with outright defiance. Ignore copyrights no matter what, use technology to secure that right in the best way's possible, and eventually the system will come arround after it's totally obvious that they're irrelavent.

    I know that the few examples of people they've attacked and left strung up to die were pretty harsh, but in practice the risks of being left behind in the information age and not getting practical use out of the code out there far exceed the risks of getting pounced by the legal system. In all truth, people are better off ignoring the legal witch hunt and just go on doing what they need to.
  • It's not the plot, it's the way you tell it. Otherwise publishers wouldn't bother with new authors, and would just keep reprinting out-of-copyright works from Project Gutenberg.
  • by NigelJohnstone ( 242811 ) on Monday February 20, 2006 @09:02AM (#14760361)
    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.

  • new histories... (Score:3, Interesting)

    by bogado ( 25959 ) <> on Monday February 20, 2006 @09:02AM (#14760362) Homepage Journal
    no one's written a truly new story in like five thousand years.

    Bold comment, but I would say compleatly untrue. Sure if you define a story in broad terms like "a romance that is forbiden and it ends with a tragedy" you can fit a few thousand books, movies and plays into that. But only one of those is "Romeu and Juliet", would you say that all of those are the same?

    I guess you will try to argue that the newer are "rip-offs" from the original. But I would say that there's no culture without "riping off". Coping and improving is what we do, and when is done well it can be good, very good. Most of the music is done in a similar way, good musitian influence the newer generation and were infuenced by big names that he used to hear when he was young.

    I believe that all this race to protect every single idea that can be selled to the point that people can't replay a "buffy episode" in the comunity theather or Joseph Doe can't create a fan fiction featuring batman or maybe "batguy" is bad for the culture in general.

    All that said, I would like to say that if this Joseph Doe character starts selling, or attempt to get a profit from his fan-fiction, then maybe the original authors could ask for a piece of those profits.
    • I believe that all this race to protect every single idea that can be selled to the point that people can't replay a "buffy episode" in the comunity theather or Joseph Doe can't create a fan fiction featuring batman or maybe "batguy" is bad for the culture in general.

      What would be bad for the culture in general would be if Joe Doe can make a living from stealing Bob Kane's or Joss Whedon's ideas without any kind of repercussion, because then there would be no incentive to create something original. The "cu
      • I don't belive, if something isn't creative it will not be successfull forever. This type of incentive to monopoly of Batmans and say Sailor Moons is a incentive to the original author repeat the same old blah blah blah.

        And in fact this is exactly what we see in the comic book world, the story lines are recreated regularly. And even batman and the daredevil (even more), if weren't for Frank Miller would have a very lower popularity today. The kind of recicling I was talking about do happen, in a controlled
  • You ought to be able to show that code is non-copyrightable if it logically follows from problem specification. If you can show that this code is the one and only way of solving the given problem, then it is obviously "obvious", and is no more copyrightable than "hi, how are you?".
  • by thogard ( 43403 ) on Monday February 20, 2006 @09:16AM (#14760412) Homepage
    Two decades ago when doing stupid things with neural nets was fashionable in computer science, I built a neural net C compiler. Odd thing is it worked on small programs so I expanded it.

    Its parser would takes code of the form foo=foo+bar; and reduces it to foo+=bar; or other minimal C with translation to var1+=var2; It would then hand that off to the NN compiler. It then ran every bit of C code I could find through it. Its interesting that there were only about 160 (if I remember right) common statements that appeared more than once and most of them were followed by a very limited subset of other statements.
    If you reduced a program another step into:
    common_line7; ...

    It ended up that many bits of code where exactly the same in many programs or had very small differences.
    The most interesting stat was most C used less than about 100 common statements but the guys at Bells Labs added about 40 (of which I think Joe Ossanna was responsible for 30 or so) and BSD guys added about 10. The IOCCC entries didn't change the results but I don't think the compiler ever got any of them right even after a cb and extra reduction step which says something about their code.
  • by Goth Biker Babe ( 311502 ) on Monday February 20, 2006 @09:17AM (#14760415) Homepage Journal
    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 difference is that programming languages are usually pretty logical and to achieve an aim there's usually an obvious and correct way of solving a problem. For example if I asked a collection of programmers to write a function to sum the elements of an array it would inevitably look like the following (for C at least).

    int sumArray(int array[], int elements) {
          int i, t = 0;
          for (i = 0; i elements; i++) t += array[i];
          return t;

    There would be variations but everyone would essentially write the same code.

    When writing literature, writers are restricted by the language, but for some they are extremely flexible and the same concepts can be written about and result in a completely different book.

    It's the same for any art. The Queen of England has had hundreds of portrates painted and yet they are all very different depite the use of similar materials. Yes the basic subject is the same but you cannot say the paintings are the same. Coding is more like photography.

    At it's extreme source code is a mathematical description of an algorithm. It's either write or wrong. I can't see how you can copywrite it any more than copywriting 2 + 2 = 4.

    • The difference is that programming languages are usually pretty logical and to achieve an aim there's usually an obvious and correct way of solving a problem.

      Exactly. It's one of those areas that the concept of "copyright," as it was originally meant, becomes problematical, even meaningless. Even if a "clean room" development is done, it's still going to look a lot like the original coding, simply because there are only so many ways to write working code. This is why it's lead to a lot of the legal

    • For example if I asked a collection of programmers to write a function to sum the elements of an array it would inevitably look like [example snipped]. There would be variations but everyone would essentially write the same code.

      Your example only works because you chose a very, very low-level example. Let's consider something a bit more interesting.

      Suppose I asked a collection of programmers to write a program to translate C++ source code into ELF/x86 object files. I guarantee you, I would not get back t
    • in C++:

      int sumArray(int array[], int elements) {
              return accumulate ( array, array + elements, 0 );
  • I noticed that one yesterday, kind of gives IBM some ammo as it relates to
    the SCO methods and concepts theory now doesn't it. If it is a little different and written by somebody else it is not copyrightable.
  • by Richard Kirk ( 535523 ) on Monday February 20, 2006 @09:21AM (#14760427)
    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.

    • by BillAtHRST ( 848238 ) on Monday February 20, 2006 @10:37AM (#14760768)
      Of course, BIOS was written in assembler, which tends to restrict the universe of potential ways of accomplishing the same thing. Some of these operations (e.g., subroutine calls) can only be done one way -- the way that the architecture specifies. If you factor in that BIOS writers would tend to try to keep variables in registers, that restricts things even further.
      With high-level languages, it would seem to be less likely to find large areas of similarity.
    • Sounds like Ken Thompson & Dennis Richie (creators of Unix & C) from Ken Thompsons speech - []

      That brings me to Dennis Ritchie. Our collaboration has been a thing of beauty. In the ten years that we have worked together, I can recall only one case of miscoordination of work. On that occasion, I discovered that we both had written the same 20-line assembly language program. I compared the sources and was astounded to find that they matched character-for-character. The
  • by stubear ( 130454 ) on Monday February 20, 2006 @09:23AM (#14760433)
    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.
    • ::::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.
      • No, he wasn't and you fail to comprehend the basic difference betwene copying someone elses work and basing your own work on someone elses ideas. Note the word ideas here. Isaac Newton expressed old ideas in new ways, he did not just copy someone elses expression of those ideas and claim them for himself.

        Let me put it this way. I can learn how to pay guiter by picking up a copy of BB King's boxed set and play all his songs over and over and over until I understand the mechanics of the guitar. This even
      • "If I have seen further it is by standing on ye shoulders of Giants." --Isaac Newton

        Newton actually said that to taunt one of his rivals, who was a dwarf.
  • fiction stories since no one's written a truly new story in like five thousand years.

    People wrote original fictions back 5 thousand years ago? heh! Imagine that.

    Mountain: the final frontier.
    These are the voyages of the Bare-Foot Enterprise. Its five stone mission: to explore strange new worlds; to seek out new food and new women; to boldly go where no man has gone before.

    Ahh... that's where it came from...
  • Patents vs Copywrite (Score:3, Interesting)

    by Veteran ( 203989 ) on Monday February 20, 2006 @09:27AM (#14760453)
    While I don't like the idea of patents in software - there is one huge advantage of patents: when the patent expires, the patented technology becomes Public Domain and can never be patented again.

    Patents have a maximum life of 20 years as opposed to copywrites - which for all practical purposes - are forever. Nobody alive today is likely to see Mickey Mouse become public domain, even though copywrites are supposed to be for a 'limited' time.

    Patents are viewed by the patent office as a 'teaching method'; when discussing a patent an examiner will say something like: "Willford (referring to a patent by the name of the primary inventor) teaches so and so..." As such patents are a very useful record of how to do things; they keep technology from being lost when the people involved with it die. Because of this patents are very useful to society as a whole.

    For example: Philo Farnsworth patented a vacuum tube which was able to produce controlled desktop thermonuclear fusion in 1967. The problem with the Farnsworth tube is that once the fusion reaction started the plasma became so hot that it was difficult to get more fuel into it. Of course, that is a problem with any hot fusion device; magnetic confinement simply hasn't reached the levels that Farnsworth achieved in 1967, so the problem has not yet become apparent in their research.

    Had Farnsworth not patented his work (U.S. Patent number 3,386,883) we would have no record of what he did, and the thoughts of one of the most insightful inventors in history would have been lost forever.

    The fusor tube is a brilliant design which deserves much more attention than it has received.
    • And yes, I misspelled copyright. Sorry.
    • Had Farnsworth instead published his work in some scientific journal, we would also have had a record on what he did. It's not that patents are the only way to reveal information to the public.
      • Farnsworth was restricted by the company he was working for from publishing in a journal. Even if he had, the record of exactly how to build his device would not have been there.

        The scientific world is hardly perfect either - the disgraceful treatment of Fleischmann and Pons by the scientific community is an example of that. By the way, Fleischmann and Pons have stated that a large part of the problem in duplicating their work is that Palladium appears to have about 16 different atomic arrangements, and tha
      • Copies of scientific journals can be difficult and/or expensive (and sometimes impossible) to obtain. Copies of issued US patents are easily and inexpensively obtained. The current price for a copy of a standard US patent is $3 (either paper or pdf). Patents can also be viewed online, for free.

  • ...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.

    Joyce's Ulysses, Mann's Magic Mountain, Proust's Rememberence of Things Past, Faulkner's As I Lay Dying - these are just off the top of my head. If you think there hasn't been an original fictional story in 5,000 years, you haven't read much.

  • How's IBM doing it in the SCO lawsuit over Linux?

    I mean, that's one of SCO's claims, the argument that code that is similar because it's functionally equivalent must have been copied. Which is ludicrous. I've written code and then found open source equivalents that had the same function names, the same variable names, almost the same code, because some things just are natural and obvious.

    To argue that similarities imply copyright infringement would like claiming that if two stories have a dog named "spot" t
  • But how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?"

    Use a logic programming language for coding. Lawyers never understand formal logic, thus logic programs are safe from any lawsuits against them, either valid or not.
  • by n8ur ( 230546 ) on Monday February 20, 2006 @10:46AM (#14760829) Homepage
    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.)
    • 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 the
      • 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

    • #1 - Copyright only exists when the idea is expressed in to/on to a tangible medium.

      #3 - Actually there are various levels of similarity. Besides substanstial similarity, there is striking similarity. Also there is something called access. Did the defendent have access to the copyrighted work? Access can be hard to prove, but if there was wide dissemination of the copyrighted work (it was a top record 10 on the charts), then access can be infered.

      But other than those two points, you nailed it pretty much.
      • On point 1, you're right -- I should have said creation + fixed in a tangible medium.

        On point 2, I stand by my statement that "substantial similarity" is the test for copyright infringement.

        "Striking similarity" has been used to create an inference of access, and some of the cases talk about areas where the copyright is "weak" because of the nature of the subject matter; in those cases, claims have been made that a higher degree of similarity should be required, but that doesn't seem to be a prevailing view
  • by PFI_Optix ( 936301 ) on Monday February 20, 2006 @10:48AM (#14760845) Journal
    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.
  • >>
    But how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?"

    Simple: you show that there was no copying - the same way you defend against any copyright infringement suit.

    If your client's code is nearly identical, you have to do a really, really good job of showing that your client did not have access to the plaintiff's code.

  • One of the big problems I see with copyrighting source code is how do you teach programming (no matter the language) without showing examples? Looking at examples and then trying to replicate something similar is how we learn to use a programming language. If all the ideas (hashing, tables, objects, etc) get copyrighted, then how do we teach the next generation of programmers?
    • [H]ow do you teach programming without showing examples? ... If all the ideas (hashing, tables, objects, etc) get copyrighted, then how do we teach the next generation of programmers?

      Use "open-source" software [OSS].

      Historically this has been one of the major motivations for OSS. It was a major part of the reason that the minix and linux systems came into existence.

      The originator of minix, Andrew Tanenbaum, was (and is) a Computer-Science prof who described having more and more problems with getting permiss
  • But how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?

    Simple: Spend ten times as much on lawyers than the plaintiffs. Same way any court case is decided.
  • Copyright vs Patent (Score:2, Interesting)

    by TarikJax ( 919148 )
    I am not American and so there may be points of your legal system that I misunderstand but to me it seems that the ability to patent business methods and software has muddied the waters. Patents are not the same thing as copyright.

    Here in the UK you cannot patent a business method or software. However, you do own the copyright to any software you create. This means that someone cannot simply copy your code and market it as their own. However, someone can create their own software that does the same thing as
    • In America business methods and software can be patented. Software can also be copyrighted. The issue with prior art comes up because of the patenting of software. Many people argue that because software is a manifestation of mathematical constructs, it is hard to patent it, because that would require no previous work on the subject. This story is confusing, however, because it seems to use "copyright" and "patent" interchangably.
  • This is just Greg Aharonian, who took a dumb legal theory to court and had his case dismissed. It's settled law that software is copyrightable. His claim wasn't going anywhere.

    He could have made a claim that a database of software used for comparison is fair use. Google makes similar arguments. That might have worked.

  • Given the genuine nature of softrware, software is copyrightable... it is not patentable.

    Copyright term length is way way out of wack and sucks more than patent term length.

    I fully believe in the ability of any human to advance and improve upon the works of those before them. This is the unique quality of man over all other known creatures.

    I belive in giving credit where it is genuinely earned but I do not support the false constraints of such IP upon the unique quality of our being.

    Its all a matter of hone
  • interesting, but how does one defend "nearly identical" independently created source code from a copyright infringement lawsuit?

    Use a clean room development process. To understand why this is so, you must understand how the burdens of proof are distributed in a copyright case. Initially, a plaintiff bears the burden to prove (by a preponderance of the evidence) copying of his work. It does not suffice to prove that the works are merely similar, as you would for a patent case. However, the burden can be

Someday your prints will come. -- Kodak