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



microlenz@earthlink.net writes:

: "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, albe
: it 
: 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 ta
: ke 
: 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 d
: oe 
: 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 a
: n 
: 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.

I think that you got that dang German wrong, it's a ding an sich, nicht 
wahr?
 
: 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 fro
: m 
: copying to 
: encourage the developement but copyright is not suited  merely because softwa
: re 
: 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.

As you suggest the courts have held that software is copyrightable because
it is represented in digital form and anything represented in digits
(or other alphanumeric symbols) is copyrightable (as a literary work)
_if it meets the other requirements for being copyrighted_.

This means that a software program that contains sufficient original
expression---such as a program that when run does nothing more than
present the author's original poem on the screen (or the printer)---
is copyrightable.  

There is very little reasoned opinion as to how much original expression
is needed to to make a computer program copyrightable, but it would
seem that most programs would be entitled only to a ``thin copright''
that would protect only the original expression in the program and
not the more functional parts of the program.

The practical question then is not whether the program is copyrighted,
but whether a defendant's copying of the program infringes the putative
copyright.  

At the moment the courts seem to hold that a literal copying of an entire
program infringes the copyright, without bothering to analyze whether
there is a copyright or whether the copying does amount to an 
infringement.

On the other hand, where the copying is only of some elements, especially
those that are needed to make a new program function the way the old
program did, the courts will now treat the question as to whether there
is an infringent very carefully, and more often ithan not will find no
infringement.  The leading case is the _Altai_ case decided by the
Federal Court of Appeals for the Second Circuit.

There is also a case from the the First Circuit, _Lotus v. Borland_,
that holds that a bunch of macros could not be protected from being
copied because they were a system or method of operation.  That case
was appealed to the Supreme Court, and the Court split four to four
with one Justice not taking part in the decision.

I believe---but I may well be alone in this---that the _Lotus_ case
establishes the fact that if one copies a program in order to use
it, rather than to view it as a literary work, the copying cannot
be an infringement of the copyright, if any, in the program.

As to the free speech issue, although the Copyright Act requires
that a work be ``expressive'' to be copyrightable, and although
the Supreme Court has often held that ``expressive'' activities,
even though they are not much like ordinary speech, are protected
by the First Amendment, there is no requirement that the writing
and communication of of information must be expressive before those
activities can be protected by the First Amendment's freedom of
speech and of the press clauses.

The First Amendment protects the writing and publication of facts and 
ideas and random numbers and the genetic code and telephone directories 
because they are all examples of speech and the activities of the press:
exprssion has nothing to do with it.

It is, perhaps, unfortunate that in the _Bernstein_ case, and in _Junger
v. Daley_, the courts protected the free speech of programmers on the
ground that the writings of programmers are expressive.  But it is
not so clear that those courts would have recognized that the writings
of programmers are writings, and therefore protected by the First
Amendment, whether or not they are expressive, so one cannot regret
the decisions in those cases.

It is, it seems to me, undeniable that the writing and distribution
of information in digital form is protected by the freedom of the 
press whether or not the writing would be expressive enough to be
copyrightable.  The courts so far have not been given the opportunity
to either deny or affirm that claim.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists