bnfb@june.cs.washington.edu (Bjorn Freeman-Benson) (04/05/88)
What is the issue that the Apple <--> Microsoft/HP suit trying to settle?
I think the fundamental issue is what part of software is
copyrightable and/or patentable.
Consider music, books and chemicals:
* One can copyright a piece of music or a book. One does not
copyright the process of typing it.
* One can patent molecules (such as anti-freeze). One does not
patent the process or the machines to make it.
The weak analogy in software is:
* One can NOT copyright the software. One can only copyright the
source and executable.
Does this make sense?
No.
The copyright/patent applies the useful product, not to some intermediate
stage. What the courts have failed to realize is that the useful product
in software is how it works, NOT the source code that produced it.
Bjorn N. Freeman-Bensondarryl@ism780c.UUCP (Darryl Richman) (04/05/88)
In article <4611@june.cs.washington.edu> bnfb@uw-june.UUCP (Bjorn Freeman-Benson) writes: >Consider music, books and chemicals: > * One can copyright a piece of music or a book. One does not > copyright the process of typing it. > * One can patent molecules (such as anti-freeze). One does not > patent the process or the machines to make it. One can also copyright a movie. This is where look & feel comes from-- audiovisual works. One copryrights the sequence of images. This is how the arcade game manufacturers copyrighted their work. >The weak analogy in software is: > * One can NOT copyright the software. One can only copyright the > source and executable. One can copyright any written work as a literary work. So obviously, CODE can be copyrighted as a literary work. >Does this make sense? > No. Actually, it makes a lot of sense. Copyrighting the code protects me from someone stealing my code and using it for a similar purpose, even if the running program looks different. Copyrighting the audiovisual aspects prevents someone from building a duplication of the artistic images that are a part of the interface (I remind you that Apple has spent a lot of money coming up with those images). --Darryl Richman -- Copyright (c) 1988 Darryl Richman. The views expressed are the author's alone. INTERACTIVE Systems Corporation -- An Eastman Kodak Company ...!{cca!ima | sdcrdcf}!ism780c!darryl or darryl@ism780c.isc.com "I'm disappointed too, but keep in mind that Transmogrification is a new technology." --Calvin
hallett@macbeth.steinmetz (Jeff A. Hallett) (04/05/88)
In article <4611@june.cs.washington.edu> bnfb@uw-june.UUCP (Bjorn Freeman-Benson) writes: >Consider music, books and chemicals: > * One can copyright a piece of music or a book. One does not > copyright the process of typing it. > * One can patent molecules (such as anti-freeze). One does not > patent the process or the machines to make it. Bzzzt. The process is exactly what you CAN copyright. The copyright statute in this area states that only physical processes can be patented - laws of nature or ideas cannot be. You can patent a new chemical AND you can patent your process to make it and the machines to make it with if they are new. If some one comes along and finds a new way to make the chemical, they may patent their alternative method and machines to do it, but not the actual material. > >The weak analogy in software is: > * One can NOT copyright the software. One can only copyright the > source and executable. Actually, the source and exectuable IS the software. One is not allowed to patent software algorithms yet since they do not represent a physical process - they more or less formulate a law of nature. I don't necessarily agree with this, but that is the current ruling. > >Does this make sense? > No. > >The copyright/patent applies the useful product, not to some intermediate >stage. What the courts have failed to realize is that the useful product >in software is how it works, NOT the source code that produced it. > Probably does not make sense, However, it is justifiable. If your company comes up with an algorithm that gives them a competitive edge, and someone else steals it, the courts may not uphold copyright. They feel that it is an attempt to copyright an IDEA. Copyrighting ideas would kill free enterprise so they discourage that. It is really a gray area. The Apple case should be a landmark. Jeffrey A. Hallett | ARPA: hallett@ge-crd.arpa Software Technology Program | UUCP: desdemona!hallett@steinmetz.uucp GE Corporate Research and Development | (518) 387-5654 +--------------------------------------+--------------------------------------+ | Credo Quia Absurdum Est | +-----------------------------------------------------------------------------+
barmar@think.COM (Barry Margolin) (04/06/88)
In article <4611@june.cs.washington.edu> bnfb@uw-june.UUCP (Bjorn Freeman-Benson) writes: >Consider music, books and chemicals: > * One can copyright a piece of music or a book. One does not > copyright the process of typing it. > * One can patent molecules (such as anti-freeze). One does not > patent the process or the machines to make it. Yes, processes are patentable. And machines are definitely patentable (that's what patents were invented for). In many cases, though, the holder of the molecule patent is not the same as the holder of the process/machine patent. For example, someone could have a patent on a centrifuge that is used as part of the process of making a patented molecule, while someone else could have the patent on the molecule itself. And yet someone else could have the patent on using a centrifuge to produce some particular class of molecules. [Note -- I am not a chemist or chemical engineer, so I don't really know whether centrifuges are used in creating new molecules -- it was just the first lab machine that came into my head.] In the software area, there is a patent on the process of using XOR to display/erase a cursor on a bit-mapped display. There's also a patent on the Unix setuid mechanism (but I think AT&T decided not to enforce their exclusive rights, so they aren't charging a royalty for it). >The weak analogy in software is: > * One can NOT copyright the software. One can only copyright the > source and executable. > >Does this make sense? > No. > >The copyright/patent applies the useful product, not to some intermediate >stage. What the courts have failed to realize is that the useful product >in software is how it works, NOT the source code that produced it. If you want to protect "how it works", you can use the patent mechanism. Copyright laws exist to prevent the expression of ideas, not the ideas themselves. Copyrighting software is not intended to prevent someone else from implementing a similar program; this would be like copyrighting the idea of a telephone. Visual ("look and feel") copyrights prevent that someone from copying your displays and user-interface, but that doesn't prevent the program from having the same function (unless the function is intimately tied to a particular user-interface, e.g. a desk accessory editor whose purpose is to provide a MacWrite-like interface). Barry Margolin Thinking Machines Corp. barmar@think.com uunet!think!barmar
khill@home.csc.ti.com (Ken Hill - Patents) (04/07/88)
In article <4611@june.cs.washington.edu> bnfb@uw-june.UUCP (Bjorn Freeman-Benson) writes:
. * One can patent molecules (such as anti-freeze). One does not
. patent the process or the machines to make it.
Actually, one does patent the process or machine to make it. This is
often the only patent you can get, because many ideas are really
better ways of making old stuff.
.The copyright/patent applies the useful product, not to some intermediate
.stage. What the courts have failed to realize is that the useful product
.in software is how it works, NOT the source code that produced it.
Patents are intended to apply to "new and useful" things.
Copyrights, however, were never intended to apply to useful articles.
They were really directed to protecting the artistic expression of an
idea. Thus, you copyright your paintings, literature, etc. At least
in the US, copyrights have always been restricted to the expression
which is copyrighted, not the idea behind it.
This is what made the acceptance of software copyrights slow to begin
with. Since software does something useful, especially object code,
copyright did not seem appropriate. We now, however, have copyrights
applying to software, and there is still confusion as to exactly what
copyrights should protect.
I personally feel that the "look and feel" cases are bad, and hope
they turn out to be an aberration. They appear to have come from the
old PACMAN case, and others of the same ilk. A few years ago, when
software was considered not copyrightable, Atari sued someone for
copying its PACMAN arcade game. Since they couldn't protect the
software, they based their claim on infringement of the copyright in
the artistic expression of the video screen. (Theory: copying screens
is similar to copying photographs, movies, etc.) This argument won,
and the court said that the infringing game had the same "look and
feel" as the original. It is my opinion that this idea somehow got
warped into the look and feel test we appear to have today, which goes
beyond artistic expression to the functionality of the software.
So, to me, the correct way of looking at software copyrights is that
you can't copy code, and you can't copy screens that have artistic
originality, but functional aspects of any software should not be
protected. Thus, windows, icons, etc. should be freely usable. If I
want to use a trashcan icon, which is not very original, even a slight
difference from yours should not constitute copyright infringement. A
bit-for-bit copy would tend to indicate copying of code (data is
included here, if you want to consider the bitmap such).
The law doesn't currently seem to be interpreted this way, but it
should be. :-) I think that, when interpreted by people who
understand the situation and aren't defending a particular position in
court, current copyright statutes and common law is mostly adequate
and actually does make sense.
There are no typos. If you think you saw one, see an opthamolo... optaha...
ophthamal... eye doctor.
Ken Hill
{convex!smu, texsun,im4u,seismo!ut-sally!im4u}!ti-csl!khill