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



Richard H. Hartman was heard to have written:
> 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.

In short and speaking strictly theoretically, I think that copyright and 
patents are both appropriate for software. Copyright for protecting the 
implementation of an idea, and patents for protecting truly unique and novel 
algorithm. But we've got do deal with the real world and not a theoretical one.

Based on modem copyright doctrine (I'm not including that abomination the 
DMCA) and the way the PTO is allowing patents for everything under the sun, 
copyrights are the best protection for software. And it would be perfect if 
copyright terms where limited to say around 20-30 years, and the old 
requirement to having to register copies for full copyright protection.

Programmer/companies have the protection to allow them to (try) to make money 
off selling/licensing/etc. Other would have access to the sources to examine, 
learn from and using fair usage for using small bits of code in other 
programs. If companies want to protect any other "Intellectual Property" by 
not release the source code, let them go with Trade Secrets and NDA 
agreements. But you don't get copyright protection also.

And I say no to patents under the current PTO policies. Computer programming 
is appling a subset of a finite number of algorithms. Most, if not all, of the 
basic algorithms have been know for decades with plenty of prior art. Nothing 
much is new under the sun.

Right now the Patent Office is awarding patents for trivial things that don't 
deserve one. Patents for software that any competent programmer would come up  
if they were required to develop it. Given the same task to a large number of 
programmer, a significant number of them come up with a similar solution. 
There goes the patent requirement of being non-obvious.

The only softare patent I come close to agreeing with is the RSA patent on 
encrypting with trap door functions. That was clearly non-obvious to somebody 
competent in the field. It took a PHD Math Professor to discover it. And it 
was truly novel and unique.

Sorry for the meander comments. I'm been rolling these though around in my 
head for some time. They just cam spilling out.

Stephen L Johnson <sjohnson@monsters.org>