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

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

Richard Hartman <hartman@onetouch.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
05/15/2002 09:08 AM
Please respond to dvd-discuss

 
        To:     "'dvd-discuss@eon.law.harvard.edu'" <dvd-discuss@eon.law.harvard.edu>
        cc: 
        Subject:        RE: [dvd-discuss]Does software really satisfy the requriments for 
Copyright?



>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.
>


Unfortunately, people reason by analogy (e.g., looks like words. Something 
with lots of Words can be copyrighted and this has lots of words therefore 
must be copyright. Or it does something so it must be patentable). You may 
be right. Software is a set of instructions for a universal 
machine-possibly the greatest tool ever constructed.



>btw: on the copyright vs. patent argument, I tend to believe
>that software -- in general -- is "most like" a device (albeit
>one that has a non-physical state) and deserves patent protection
>rather than copyright. 

The problem with the argument is that the claims MUST be narrow. It's 
asinine to allow Ron Bracewell to patent the Hartley transform by creating 
a fictitious machine that implements it. Ditto for Karmarker, Analytical 
Graphics 's Thermal and link budget software. The patent is not covering 
an implantation but the function or algorithm. Add to that the ability to 
patent satellite orbits and it just gets downright stupid. Before even 
attempting to apply any part of patent law to software, patent law and 
processes have to be cleaned up. Otherwise software patents just provide 
more grist for the litigation mills. 


The other problem is that it must be NEW. Not just a new way to do an old 
thing. In software you can come up with hundreds of program variations 
that produce the same output. Are all of them worthy of protection? 
Hardly. 

The software industry craves mere protectionism. This is not a sufficient 
reason for granting it. The airline industry was highly regulated to 
encourage its development but in the late 70s it was deregulated (and 
hasn't done what anybody expected either) Maybe the approach to this 
problem is not should software be copyrighted or patented or what other 
actions should be taken but WHAT ACTIVITY DO YOU HOPE TO FOSTER?




>That said, the patent process both 
>a) moves too slowly and b) protects too long to be the appropriate
>protection mechanism.

What is protected must be worthy of the protection. Allowing a patent for 
something that has a lifetime of three years really defeats the purpose of 
patents. Patents, copyright are monopolies, onerous at best, odious at 
worst. 

>
>-- 
>-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 requirements 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 principles 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 something...therefore...it must be 
>> copyrightable"...NOT SO. It is 
>> merely instructions for interpreting data...no more so than an 
>> dictionary of 
>> hieroglyphics, cuneiform or kanji. It is grammar 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 
>> protection as speech. That 
>> seems to be the conundrum. Economically the desire is to 
>> protect software from 
>> copying to 
>> encourage the development 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.
>> 
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