kaz@ast.COM (Richard Kaczmarek) (05/11/91)
Okay, here goes nothing. I've been reading a quite a few articles (and some law books, since I got interested) about software copyright. The good I've heard is that it protects intellectual property from theft. The bad is that it inhibits the advancement of software engineering in some form or another. What are your thoughts? If your thoughts are "Why did he ask that question here?", be aware that my asbestos suit is at the cleaners.:). If your thoughts are "Hey, this is going to affect my livlihood," post. -- Rich Kaczmarek - uucp: ...!uunet!legs!kaz AST Research Inc. Fax: (714) 727-9358 P. O. Box 19658 Tel: (714) 727-8621 Irvine, California 92713-9658 Moo
mcgregor@hemlock.Atherton.COM (Scott McGregor) (05/14/91)
Richard Kaczmarek writes: > The good I've heard is that it protects intellectual property from theft. > The bad is that it inhibits the advancement of software engineering in > some form or another. What are your thoughts? This is always a heated issue, and many of the past discussions have generated mainly heat, and not much light. There are some very eloquent advocates for each side of the issue. Stallman, is a notable opponent of copyright protection of look and feel. Ben Schneiderman has made several thoughtful defenses of copyright protection including the Viewpoint article in the April 1991 Communications of the ACM. Both sides make good points I think. I imagine that what is really important is the details of what is and is not protected, and how licensing does or does not take place. Unfortunately, those are primarily questions about our legal processes, and our business processes, and not about technical processes which have been the central focus of expertise of people who participate in this forum. While it is probably impossible to resolve this issue here, it may be possible to clarify some of the important considerations. First of all, consider exactly what is being copyrighted. There seems to have been only limited opposition to software copyright as it refered to strict copying of source code, i.e. where the program's instructions were what was being compared. People who put their time and effort into THAT particular representation felt that they should be protected from someone who would just COPY OUTRIGHT their code. This is basically just against the grossest form of plagerism. When that code wasn't copied exactly, but rather translated to another language, there might be some more divergance of opinion: some people claim that at least the translation provides added value and so for that reason it should not be regarded as something that copyright protection would prevent. When you get to copying user interfaces, the issues seem to be even cloudier. One of the problems is that there has been difficulty apportioning protection to software between disparate forms of protection such as copyright, patent and trademark. Few people object to the right for the producer of a distinctive logo (say Apple's "bit into apple" motif) who uses that mark on their screen to protect their mark from use by others (i.e. tradmark protection). Or if they have written an on-line "help" panel, many people would agree that perhaps the specific wording or illustration that they include might have some artistic merit worthy of protection under copyright. Patent protection, since protecting fundamental algorithms is specifically forbidden, has been a bit more dicey. Should a chip that does a special form of rendering qualify for patent protection? But beyond these what of a particular rendition of say a trashcan rendered with lighting from the up-right area? Should not it not have copyright protection of its artistic content? What of a clear ripoff that merely changes the light source to the opposite corner? Is that not a derivative work, covered by copyright law? But now what about the use of ANY trashcan motif? What about size and shape and color and where it is placed on the desktop? U.S. intellectual property law has always held that ideas are not protectable, only objects which instantiate them. In software, the line between what instantiates the idea, and the idea itself is much less clear than say in the case of a manufacturing machine. There is considerable value in the precise specification of a language, or the precise configuration of a user interface, precisely because some specifications and configurations are easier to use than others. It is certainly desirable to encourage such improvements. On the other hand, there is often value in standardization. The ability to switch between car steering/accelerator/brake mechanisms, or to use different brands of keyboards using LARGELY the same interface is good for usability. But note that even these do not copy EXACTLY. People may prefer a given keyboard bad upon where the escape key is placed, how many function keys it has, the springyness of the keys, and the shape of the key caps. There is still variety within the uniformity. The same is true about automobiles. It is desirable for the law to walk this narrow line encouraging variety even but also allowing some uniformity. The debates over software copyright (particularly user interface "look and feel" copyright) seem to hinge upon which side of the uniformity/variety line the law should err. Richard Kaczmarek wrote: > The good I've heard is that it protects intellectual property from theft. This is only good in that by protecting it from theft, it makes it valuable to the person who has it. This encourages the creation of more of it, i.e. fosters variety. He also wrote: > The bad is that it inhibits the advancement of software engineering in > some form or another. The question is how does it inhibit the advancement of software engineering? If it does so (and many claim it does), then it is only in that it inhibits uniformity. Neither enforces variety (no one may care enough to invent another variation), nor prevents uniformity (it is always possible to disclaim ownership, or to license others). So how then will business be affected under narrow vs. wide application of copyright? This will be determined primarily by what is economically advantageous and secondarily (because intellectual property law is only enforced when suit is filed--and economics determine that). In the absence of protectable value in new user interfaces, will people stop having great new ideas of how to improve things? I think not. Evidence is that many people are naturally creative, regardless of laws. But the question of whether their ideas will ever come to the marketplace adding variety is less obvious. Many people I have talked to have provided anecdotal evidence that many companies will not support the development of new improvements where an industry (de facto) standard has been created. Outside of the software field, product improvements have often been primarily limited to patentable areas. So, as Schneiderman points out, there may be little financial/business structural support for ongoing usability improvements if no protection is allowed. Small companies might not be able to get cash to fund their new ideas, and large companies might have little need to change to hold on to their positions. On the other hand, many, such as Stallman, have warned of what will happen if good user interface techniques are handcuffed in the form of proprietary advantage from one company alone. Apple's and Lotus's suits have often been used to point out the possible risks, of strong UI protection--won't they squash everyone else out? If it is possible for them to do so, it is clearly because there is value in the UIs they have built. So perhaps they do deserve some benefits--but clearly if this goes to the point of oppressive total monopoly it goes too far. But there is remedy (in the form of anti-trust laws) if that is reached. There are also marketplace remedies, for instance when Adobe's licensing was regarded as oppressive, others such as Apple moved to come up with an alternative standard. Similar events lead to OSF's creation. Even in other industries, patent holders such as Charles Goodyear and the Wright Brothers tried to hold their patents tightly and lost out as a result. There can be down sides as welll as upsides to not licensing patents at low prices. Lastly, protection only works once you go to the trouble of finding the violaters and also of filing suit against them. Small unseen companies can actually "get away" with a lot until they earn enough to be noticable to the intellectual property owner. Some countries have laws that specifically exempt copyright and patent protection in the case of work done for research purposes. Sales of improvements still require licensing of the underlying property, but sales of the improvement also requires licensing from the original owner. It is no surprise that free cross-licensing is often a result, which favors everyone. This might also be good in the U.S. Scott McGregor
bernie@metapro.DIALix.oz.au (Bernd Felsche) (05/14/91)
In <3287@legs.UUCP> kaz@ast.COM (Richard Kaczmarek) writes: >If your thoughts are "Why did he ask that question here?", be aware that my >asbestos suit is at the cleaners.:). If your thoughts are "Hey, this is >going to affect my livlihood," post. Like most other people, who sweat long hours over a greasy keyboard, I feel that I need to protect what I create. At this point in time, there are only two mechanisms which I could employ to protect my work, and the ideas on which it's based; namely copyright and patent. Copyright is well defined, and although there is a variety of agreements, they mostly work. However, copyrights fall short of the mark when one protects an idea, and this is why people try to patent software. Patents have been in general use, protecting the rights of inventors for many years, and Patent co-operation treaties exist between most countries. (It's interesting to note that it's more difficult to Patent than to Copyright, partly because the co-operation treaties are more restrictive.) Judging from my own experiences with Patent lawyers and Patent Examiners, it's hard to see how they could be in a position to judge what is Patentable. Both work from their own knowledge of the subject, and research to discover precedent. Their research usually starts with existing patents, and then, maybe, they consult reference material, related to the subject. I'm not aware of any "experts" ever being called in to comment on a particular application. As there are few existing software patents, examiners and lawyers are often flying by the seat of their pants. So what? Well, considering that one can Patent anything if it appears novel, and not obvious to someone "skilled in the art", then it becomes very easy to Patent anything if you're on the leading edge of any niche technology. Perhaps it should be. My argument against software Patents is that in the current framework, they are likely to be abused, because in most cases, the Patent Examiner is not particularly "skilled in the art", and may think that something is gee-whiz, when it's really ho-hum to the peers of the inventor: i.e. obvious! This brings me around to my proposal, i.e. leading-edge technology should be subject to confidential peer review prior to approval by the Patent Examiner. The Examiner would still weed out most applications but submit those believed to be worthy of approval, to a confidential peer review, and take their judgement into consideration, in approving/rejecting the patent. The mechanisms of confidential peer review are critical in protecting the rights of the inventor: 1. How many peers? 2. How shall they be selected? 3. How long should the peers be allowed to review the application? 4. How can confidentiality be protected? These are only a few of the questions which come to mind, almost immediately. -- Bernd Felsche, _--_|\ #include <std/disclaimer.h> Metapro Systems, / sale \ Fax: +61 9 472 3337 328 Albany Highway, \_.--._/ Phone: +61 9 362 9355 Victoria Park, Western Australia v Email: bernie@metapro.DIALix.oz.au
orville@weyrich.UUCP (Orville R. Weyrich) (05/15/91)
In article <3287@legs.UUCP> kaz@ast.COM (Richard Kaczmarek) writes: >Okay, here goes nothing. I've been reading a quite a few articles (and >some law books, since I got interested) about software copyright. The >good I've heard is that it protects intellectual property from theft. >The bad is that it inhibits the advancement of software engineering in >some form or another. What are your thoughts? > Source code and object code should be given copyright protection. However, I find the current wave of "look and feel" copyright litigation abhorrent. (One more reason why I have no desire to ever own a Macintosh). Worst of all is the trend toward pattenting software. It is all wrong for software, where programmers regularly reinvent the wheel simply due to the information explosion. Consider also the time frames involved: It takes years for someone to obtain a pattent. In very many cases many folk will have also invented the same "software device" and thought to themselves "this is trivial, not worth a patent". If then the patent is granted, there's lots of folks that need to either pay royalties or else engage in a costly legal battle. It becomes a night-mare to develop even a simple piece of software: the programmer (or a lawyer) has to do a patent search for each idea embodied in a program. We have no technology to do this efficiently (it is the equivalent of finding all possible reusable chunks in a program and proving that they do not already exist in a library of reusable chunks). Nobody can afford to do the required "due-diligence" to determine that a piece of software is free from patent infringence. Every software developer finds him/herself sitting on a time-bomb just waiting for some (unpublished) patent "pending" to be granted. Then the patent-holder has a much easier task: search through existing code for a match to his/her patented piece, and file suit. ONLY THE LAWYERS WIN. -------------------------------------- ****************************** Orville R. Weyrich, Jr., Ph.D. Certified Systems Professional Internet: orville%weyrich@uunet.uu.net Weyrich Computer Consulting Voice: (602) 391-0821 POB 5782, Scottsdale, AZ 85261 Fax: (602) 391-0023 (Yes! I'm available) -------------------------------------- ******************************
eggert@twinsun.com (Paul Eggert) (05/15/91)
mcgregor@hemlock.Atherton.COM (Scott McGregor) writes (in an otherwise thoughtful article): Ben Schneiderman has made several thoughtful defenses of copyright protection including the Viewpoint article in the April 1991 Communications of the ACM. Schneiderman's Viewpoint article was vigorous but thoughtless. He argued that we should protect individual rights by placing restrictions on copying computer interfaces. This is exactly backwards. Normally one can copy whatever ideas or expressions that one pleases, whether it's the Bible, Shakespeare, or the decisions of Judge Keeton; copyright and patent restrictions are limited exceptions to this general rule. Whether or not we decide to increase such restrictions, let us not be deluded into thinking that they promote individual rights.
theo.bbs@shark.cs.fau.edu (Theo Heavey) (05/18/91)
kaz@ast.COM (Richard Kaczmarek) writes: > Okay, here goes nothing. I've been reading a quite a few articles (and > some law books, since I got interested) about software copyright. The > good I've heard is that it protects intellectual property from theft. > The bad is that it inhibits the advancement of software engineering in > some form or another. What are your thoughts? > I think that Intellectual Prop and Copyright are not always the same. I am NOT a legal eagle so I may be wrong about that . Both impinge upon the reusability issue (that is the SWEng concern)