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