RE: [dvd-discuss]Does software really satisfy the requriments for Copyright?

[Richard Hartman <hartman(at)onetouch.com>]

The biggest problem is attempting to shoehorn a New Thing (tm)
into laws written for other things entirely.  There is much debate
on whether software is expression or device (to be protected by
copyright or patent).  Well ... it has aspects of both, and potentially
in greater or lesser degree depending upon the software in question.
Whoever said "there is nothing new under the sun" was quite wrong,
sometimes there _is_ something new, and it deserves new and unique
treatment instead of attempting deal with it as if it were something
else.

btw: on the copyright vs. patent argument, I tend to believe
that software -- in general -- is "most like" a device (albiet
one that has a non-physical state) and deserves patent protection
rather than copyright.  That said, the patent process both 
a) moves too slowly and b) protects too long to be the appropriate
protection mechanism.

-- 
-Richard M. Hartman
hartman@onetouch.com

186,000 mi./sec ... not just a good idea, it's the LAW!


> -----Original Message-----
> From: microlenz@earthlink.net [mailto:microlenz@earthlink.net]
> Sent: Tuesday, May 14, 2002 8:01 PM
> To: dvd-discuss@eon.law.harvard.edu
> Subject: [dvd-discuss]Does software really satisfy the requriments for
> Copyright?
> 
> 
> As I drove home I pondered the fact that once again earthlink 
> software has 
> messed up. I've been told I need to restore it to its 
> virginal state before it 
> was tainted..<sarcasm> and reload everything and I will lose 
> bookmarks, mail 
> etc (no problem. been there done that and wont' do that 
> again) but as I 
> contemplated that on the systolic freeways I thought
> 
> "Why should software be subject to copyright?"
> 
> If I created the minimal program to open and display a file, 
> it would have NO 
> expressive content since it would be merely a mathematical 
> optimization, albeit 
> difficult to achieve. But having achieved it, it has not 
> expression and so is 
> not copyrightable.
> 
> THen I pondered the "functional" aspects....PDF, 
> word95,word97,multimate, 
> whatever are files...the programs that access them are 
> function since they take 
> the input and translate them to readable form. THese program 
> provide the 
> function to access information..What is copyrightable there? 
> Function is a 
> necessity. So is preparing food. So is wearing clothes. <OK 
> they are optional 
> in some places but sunburn, frostbite and death are problems 
> in others> 
> Recipes, fashion, these are not subject to copyright (or were 
> not). .So how doe 
> sthe function of software differ?
> 
> How does the function of software differ when it merely 
> recreates something 
> already done in a new way. It's as if a mechanical device 
> recreates the 
> function of another using well established princilples and 
> parts. Nothing new 
> has really been created, only a new way to do an old thing.
> 
> So how is software different? It uses words. Without 
> understanding the dang an 
> sich (thing in itself), people have thought. "literary works can be 
> copyrighted...literary works are composed of long sequences 
> of word put 
> together to express a thought...software is long sequences of 
> words put 
> together to do someting...therefore...it must be 
> copyrightable"...NOT SO. It is 
> merely instructions for interpeting data...no more so than an 
> dictionary of 
> hyroglyphics, cuniform or kanji. It is grammer and an 
> automated way of 
> translating.
> 
> The problem here is that while the functional aspects of 
> software would tend to 
> not allow it 
> protection under copyright the functional aspects of it 
> should not deny it 
> potection as speech. That 
> seems to be the conundrum. Economically the desire is to 
> protect software from 
> copying to 
> encourage the developement but copyright is not suited  
> merely because software 
> consists of words, or even strings of "1" or "0" to be interpreted.
> 
> As Ernest has pointed out, maybe the problem is solved by 
> getting copy out of 
> copyright.
>