[trial.misc.legal.software] Copyrights

abbott@aerospace.aero.org (Russell J. Abbott) (07/19/90)

Recent discussions of copyrights have me very confused.  I'd appreciate
further discussion to illuminate the legal and ethical issues involved.

On the one hand, it certainly seems reasonable to want to protect and
reward the creator of an idea.  On the other, I believe that one cannot
copyright an idea--only its expression.  That confuses me immediately
because I don't understand what a patent is other than the protection of
an idea--unless one says that the idea for the design of a device is a
special kind of idea that can be protected.  But that is even more
confusing since one way of looking at software is that it is exactly a
design for a device.  So why shouldn't any piece of software be
patentable?  But if it is, what is being patented?  The design idea?
What does that mean?  I realise that software can be patented these
days, but I'm not clear about what kind of software is patentable.
Also, I realize that software can be copyrighted, but that seems to be a
different issue.  So I guess my first questions are: what is a patent
and can be patented?

With respect to copyrights, I'm confused about that too.  I understand
that one cannot legally make and sell a xerographic copy of a
copyrighted document.  However I don't understand how the line is drawn.
Apparently the limit on when one can copy something has to do at least
in part with the notion of "fair use."  The issue of "fair use" is
discussed in the Silber/Samuelson discussion in the July IEEE Software.
Selling a copy of a copyrightred document is not fair use.  Copying for
research purposes or for one's own use seems to be.  

But then why is it illegal to make a copy of a computer program and
*give* it to someone?  Would it be if the person were doing some work
for you?  What about making a copy of a program for yourself and using
it on two machines.  Why is that not fair use?  Here the issue seems to
be that one is getting double use of something intended for single use.
That would suggest that making a copy for someone is ok as long as both
copies are not used simultaneously.  Can one really draw such a line?
Licensing strategies seem to be moving in the dirction of limiting the
number of concurrent users of a program.  That seems like a reasonable
commercial strategy, but can copyright law be used to force such
restrictions?

What about the issue of performance of copyrighted materials.
Presumably it is fair use to whistle a copyrighted song while walking
down the street.  But it is not fair use to do so while presenting a
paid performance unless one pays royalties.  What if the performance is
unpaid?  Is it then fair use?  Presumably yes if there were no
commercial or other money-raising benefit involved, e.g., charity, but
presumably no if there were.   What if the audience made a payment that
simply covered expenses, e.g., rent of the hall?

What are the ethical issues involved?  It would seem that the ethical
issues revolve around commercial use--rather than protection and reward
of the producer.  Otherwise one would see whistling a copyrighted song
as an ethical violation, which no one seems to do.  One could then argue
that ethically it is ok to copy a friend's software for one's personal
use--although the friend could not ethically sell you the oportunity to
do so.  The situation seems similar to whistling a song for your own
enjoyment.  In both cases you are not selling the use of the copyrighted
material for commercial gain, but in both cases the originator of the
material is suffering loss of royalties.

To take another example, if one sees a copyrighted blueprint for a
house, memorizes it, and then builds another house with the same design,
does that violate copyright?  If the recent Lotus court decision stands,
it presumably would.  I guess part of the issue is the degree to which
the new object differs from the original.  A parody presumably does not
violate copyright.  What about a work of art that was inspired by
another work of art?  What about a product that was inspired by another
product?  How is that line drawn?

I find the whole area quite confusing and would appreciate a discussion
of the legal and ethical principles that are generally agreed on--if
there are any.

-- Russ 

brnstnd@kramden.acf.nyu.edu (Dan Bernstein) (07/29/90)

In article <rodney.649107377@dali.ipl.rpi.edu> rodney@ipl.rpi.edu (Rodney Peck II) writes:
> What about the RSA patent?

Quite obviously not enforceable. I detailed the reasons for this in a
misc.legal article some time back. Every court case dealing with
algorithms has ended up with the same result: A mathematical algorithm,
in and of itself, is not patentable. A process that takes numbers, and
performs certain mathematical operations upon them to produce other
numbers, is not the subject of a patent. (These aren't exact quotes;
dredge through your USCA or my previous article for details.)

RSA (like many other patent holders) has tried to get around this
restriction by patenting ``only'' all applications of an algorithm,
rather than the algorithm itself. There are other cases establishing
that this is unsupportable: although a particular implementation or
application of the algorithm may constitute sufficient invention to
warrant a patent, a different implementation cannot fall under the same
patent.

I'd love to see RSA challenged in court.

By the way, the 1981 decision that software patenters keep gibbering
about didn't say that software patents were valid. What happened was
that company A used a computer in one part of an innovative method for
doing process X. Now it has been established that using a computer to
perform an algorithm doesn't make the algorithm patentable. Company B
took the opportunity to challenge A's patent, saying that the use of a
computer rendered the entire process unpatentable. This is, of course,
backwards: using a computer doesn't give you a patent, but it doesn't
take away a patent either. And that's all the court said.

---Dan