[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: [dvd-discuss] Gedanken Experiment -Unix and Norton

On 8 Jul 2003 at 11:29, John Zulauf wrote:

Date sent:      	Tue, 08 Jul 2003 11:29:16 -0600
From:           	"John Zulauf" <johnzu@ia.nsc.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss] Gedanken Experiment -Unix and Norton
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> the question of facts vs. copyright expression has to do with a concept
> of "editorial discretion".  A database (full of facts) can be
> copyrighted (though not the facts themselves) if some creative judgment
> or human editorial decisions are reflected in the selection of the
> facts.  Thus one could freely use any single fact (as it is not and
> cannot be copyrighted), but could not freely republish the collection of
> these facts.

Discretionary Editing of a database is an oxymoron. A database is simply a
 SYSTEMATIC collection of facts. A database that showed editorial 
discretion in what goes into it would be totally useless as a database. 
The only editorial discretion is what that system is (OK if anyone wants to 
argue business method.....go ahead but first check out what a ballpean 
hammer can do to you) other than that there is no editing. 
Editing would be censorship ("No there was no Holocost otherwise 
we'd have something in our database", "What of NYT, 1946?","Sorry our editor 
decided to use his discretion and 
did not put that in our database") So the kind of editing that would be 
necessary to transform database to a copyrightable work would also negate the 
utility of a database and (OK anyone want to argue the doctrine of FRAUD here).

> As for programs, these "facts" are in their entirety the "editorial
> discretion" of the programmer including,

Lets investigate this one

> the choice of variable names,

index, index1, index2..count, count1, count2? Ismpl(i),Qsmpl(i),ARRAY1(I), 
aRRAY2(J),.....AND LETS not forget X,Y,Z, i,j,k 

> the structure and order of the operations, 

The structure and sequence of operations generally determines what is done. 
There is less creativity there other than optimization but optimization is not 
creativity it is algorithm development and discovery. It is not covered by 
patent and never should be. Furthermore, since it has never been covered before 
should it ever be, the patent office must cover the UNPATENTED prior art before 
granting any patent (exercise for the alert reader. In expanding the scope of 
patents, the previouslyunpatented prior art invalidates a patent for it but how 
does the patent office check for THAT.)

>the selection of algorithm,

Bubble sort vs heap sort.....not that exciting a programming task...after 
looking at the 1.9GHz Pentium 4, 500Mhz buss, 500MB memory and 40GB Harddisk I 
have at work, this is not much of an issue except where people are really 
pushing things (e.g, computer graphics or ray tracing , communications 

> the syntactic style ("{" on the same line as the conditional...
> please!), and myriad other unique creative details.

Writing style is not copyrightable. How much Hemmingway or Hammitt hash was 
created in the 30s and 40s? The placement of comments or good programming style 
is not the stuff of copyright (although it can be used for investigation of 
copyright infringement or theft of trade secrets) 

BTW I will admit to having a very distinct programming style. Look at Appendix 
E in the back of B. Sklar Digital Communications 1ed Appendix E. Guess which 
sections were mine and which were my coauthors.

But much of this applies to Source code...not object code and that is generally 
a trade secret. But even if it is not, there is considerably less originality 
in it than most of the court decisions would have us believe.

> What is odd about this is that it is the mechanically transformed
> derived work (the .obj,.dll, and .exe (or .o, .lib, .so, or a.out) )
> that is usually given copyright.  The actual creative work is given
> copyright, but not required to be published.  

Agreed This is the problem. It IS a trade secret. If it is published completely 
then it should be available for examination for RE, compatibility etc.

>The mechanistic derivative
> work "inherits" the unpublished works protections (as a derived work)
> but itself reflect *no* editorial discretion (except in the defines and
> compiler options).  "Promote progress"... right!

No argument

> <beat targ="dead horse">No derived work of a unpublished work should be
> given published copyright.  The level of protection or derived works
> should not exceed that given to the original work.</beat>

I think it was Jessica Litman who wrote that the problem with copyright now is 
that there is an industry of obsolete people who still have BMWs that they want 
to keep and don't want to take up the task of throwing away all that they 
learned in school and practice and starting from scratch.

> .002 
> juergen + barbara wrote:
> > 
> > isn't then a program (software or hardware) a collection of "just facts and
> > information into some (computer-understandable) arrangement of bytes"?
> > 
> > where is the line of (perhaps protectable) computer code and "just" data?
> > 
> > interesting.
> > 
> > *jm*
> > 
> > -----Original Message-----
> > From: majordomo-owner@eon.law.harvard.edu
> > [mailto:majordomo-owner@eon.law.harvard.edu]On Behalf Of
> > microlenz@earthlink.net
> > Sent: Montag, 07. Juli 2003 21:04
> > To: dvd-discuss@eon.law.harvard.edu
> > Subject: RE: [dvd-discuss] Gedanken Experiment -Unix and Norton
> > 
> > On 7 Jul 2003 at 19:58, juergen + barbara wrote:
> > 
> > From:                   "juergen + barbara" <jmhoraze@compuserve.com>
> > To:                     <dvd-discuss@eon.law.harvard.edu>
> > Subject:                RE: [dvd-discuss] Gedanken Experiment -Unix and Norton
> > Date sent:              Mon, 7 Jul 2003 19:58:10 -0700 Send reply to:         
> > dvd-discuss@eon.law.harvard.edu
> > 
> > >
> > > I venture they have stored the Virus-signatures in a compact form, not
> > just a,
> > > say, simple list in a text file.
> > 
> > Doubtless but it's still just facts and information that has been organized
> > into some arrangment of bytes. The arrangement cannot be copyrighted and not
> > patented as well, although these days who knows.
> > >
> > > Also, identifying and then listing a Virus-signature and the remedy may be
> > > protected too.
> > 
> > Why? That's just facts as well. A partial remedy is no remedy and neither is
> > too much of a remedy (Destroy the harddisk!) so there is also no originality
> > in the remedy.
> > 
> > (...)