tim@ism780c.UUCP (Tim Smith) (01/18/86)
[ This is being cross posted to net.micro and net.legal. Followups to net.legal only, please ] Here is a book that is relevent to the software protection issues: "A Software Law Primer", by Frederic William Neitzke. It is copyright 1984, so is probably still accurate. ISBN number is 0-442-26866-1, for those who care. Chapter titles are "Patents", "Copyrights", "Trade Secrets", "Trademarks", "The Mechanics of Protecting Software", "Employer/Employee Considerations", "Business Considerations", "Contracts", "Torts", "Legal Tips for the Software Entrepreneur", and "The Betamax Case". Here are my interpretations of things I have read in this book. [ Warning: I am not a lawyer. ] A copyright prevents others from copying, but it does not protect the ideas expressed in the work. The Copyright Act defines a computer program as a "set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result." It also says "copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be percieved, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." This clearly can be applied to source code. As to object code, some courts find that it clearly can, and others find that it clearly can't. The courts that say it can't be take the position that object code in a ROM is a mechanical device, not an expression, and thus can't be copyrighted. The courts that say it can be tend to take the position that it is a translation or encryption of the copyrighted source code. Putting something into memory is making a copy. So running a program off of a disk would be making a copy. However, the Copyright Act says this: It is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of the program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possesion of the computer program shoul cease to be rightful. This, it is not a violation of copyright to run a program. :-) It also says that you may sell or lease exact copies of a program only as part of a transfer of all rights in the program. Adaptations may be transfered only with the authorizaton of the copyright holder. ( This seems to answer the questions raised about modified IBM roms ) Note that the law does NOT give you a right to make backup copies of software. It merely says that doing so does not violate the copyright. It still may violate a contract between you and the copyright holder. Since a copyright does not protect an idea, how does one prove that ones copyright was infinged? Most infringers will make some changes to make it the copy look like an original work. Usually the copyright owner makes out a circumstantial case based on access and similarity. There are two examples given in the book from the world of video games. The first is Pac-Man v. K.C. Munchkin. The sort of things that the various courts noted about the games ( this one went through 3 or 4 levels of courts ) were that they both were maze chase games, with dots and power capsules, they both had rectangular mazes, two tunnel exits, and a centrally located corral, and flashed different colors when you ate all the dots. They noted that KC had one dead-end passage, and that the corral square instead of rectangular, and that it rotates 90 degrees every few seconds, but that it serves the same purpose as the one in Pac-Man. They noted that the KC gobbler had a mouth that opens and closes like the one in Pac-Man, and that the monsters in both games have eyes that look in the direction the monster is going. The question is, are the games "substantially similar"? The District Court said they were not, but the Appeals and Appellate Courts thought they were. Some things that hurt KCs case were that they had played Pac-Man before, they had tried to license the name "Pac-Man" for home video use, and had started work on KC before learning that they could not get the license, and that thier independent retailers advertised it as "like Pac-Man" or "Odyssey's Pac-Man." This is referenced as Atari, Inc. v. North American Philips Consumer Electronics Corp. 672 F. 2d 6607 (1982) Now consider Asteroids v. Meteors. Atari sued Amusement World ( the makers of Meteors ). The trial court found that in both games the player commands a spaceship who tries to destroy various sized rocks and enemy ships. They noted that in both games (1) There are three different sizes of rocks (2) The rocks appear in waves, each wave starting out as larger rocks (3) Larger rocks move slower than smaller rocks (4) When hit, a large rock splits into two medium rocks, a medium splits into two small rocks, and small rocks go away (5) A rock hitting the player's ship destroys it (6) There are two sizes of enemy space ships (7) The larger enemy ship is an easier target than the small one (8) The player's ship and the enemy ships shoot projectiles. The court listed 22 similarities, and 9 differences. They found that M was based on A. The court said, "to put it bluntly, [Amusement World] took [Atar's] idea." But that AW had only taken those ideas and those portions of Atari's game that were "inextricably linked" to the idea, and thus, no copyright infringement had occured. The court noted: [It] is not enough to observe that there are a great number of similarities in expression between the two games. It is necessary to determine wheather the similar forms of expression are forms of expression that simply cannot be avoided in any version of the basic idea of a videogame involving spacerocks. It seems to me that the above is applicable to the Apple vs. Gem stuff. For those who know what this means, the above was Atari, Inc., v. Amusement World, Inc. No Y-81-803 ( D. Md. 1982 ) ( No, I don't know what it means! ) One more video game case was Stern Electronics v. Kaufman. Stern had a game, and Kaufman introduced a game that was virtual identical ( it even had the same name! ). Stern obtained a copyright on the game as an audiovisual work. They did not copyright the code. Kaufman contended that Stern was only able to copyright the program. Both the trial court and the Appeals Court ( why is the trail court in lower case, but the Appeals Court in upper case? ) found that the game display is copyrightable. Kaufman also tried to claim that the display was not eligable for copyright protection because it was different each game, because of interaction with the player. The court found that enough of it was the same each time to allow it to be copyrighted. [ This was Stern Electronics v. Kaufman 669 F. 2d 852 ( 1982) ] As for patents, some software can be patented. My fingers are too tired to go into that, so I won't. -- Tim Smith sdcrdcf!ism780c!tim || ima!ism780!tim || ihnp4!cithep!tim