Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
Lee Hollaar wrote: [...] methods implemented in computer software. Forward Inline Original Message Path: uni-berlin.de!individual.net!not-for-mail From: Alexander Terekhov [EMAIL PROTECTED] Newsgroups: gnu.misc.discuss Subject: Re: The many ways confusion Date: Fri, 25 May 2007 21:35:39 +0200 Lines: 159 Message-ID: [EMAIL PROTECTED] References: [EMAIL PROTECTED] Reply-To: [EMAIL PROTECTED] Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Trace: individual.net enaCG+WiaP/HM0ymjutJewEhjlwZ2C0bjjTrFm7v9H1HMjsqzL X-Mailer: Mozilla 4.77 [en] (Windows NT 5.0; U) X-Accept-Language: en Xref: uni-berlin.de gnu.misc.discuss:104331 rjack wrote: If there is a single way (or maybe a very, very limited way) of expressing an idea, it is said that the idea and the expression have merged and therefore the expression is not protectable by copyright. That has nothing to do with whether there is a patent that covers a method that can be implemented in software. There is, in general, a variety of ways to implement (express) the method, and therefore each implementation can have its own copyright. See Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004): In ascertaining this elusive boundary line between idea and expression, between process and nonfunctional expression, courts have looked to two other staples of copyright lawthe doctrines of merger and scènes à faire. Where the expression is essential to the statement of the idea, CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 68 (2d Cir. 1994); see also Lotus Dev., 49 F.3d at 816 (If specific words are essential to operating something, then they are part of a method of operation and, as such, are unprotectable.), or where there is only one way or very few ways of expressing the idea, Warren Publg, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1519 n.27 (11th Cir. 1997), the idea and expression are said to have merged. In these instances, copyright protection does not exist because granting protection to the expressive component of the work necessarily would extend protection to the works uncopyrightable ideas as well. See Gates Rubber Co. v. Bando Chem. Indus., Ltd.,, 9 F.3d 823, 838 (10th Cir. 1993); see also Murray Hill Publns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 319 n.2 (6th Cir. 2004) (noting that where idea and expression are intertwined and where non-protectable ideas predominate, expression is not protected); see generally Nimmer § 13.03[B][3]. For computer programs, if the patentable process is embodied inextricably in the line-by-line instructions of the computer program, [ ] then the process merges with the expression and precludes copyright protection. Atari I, 975 F.2d at 83940; see, e.g., PRG-Schultz Intl, Inc. v. Kirix Corp., No. 03 C 1867, 2003 WL 22232771, at *4 (N.D. Ill. Sept. 22, 2003) (determining that copyright infringement claim failed because expression merged with process in computer software that performed auditing tasks). For similar reasons, when external factors constrain the choice of expressive vehicle, the doctrine of scènes à fairescenes, in other words, that must be doneprecludes copyright protection. See Twentieth Century Fox Film, 361 F.3d at 31920; see generally Nimmer § 13.03[B][4]. In the literary context, the doctrine means that certain phrases that are standard, stock, . . . or that necessarily follow from a common theme or setting may not obtain copyright protection. Gates Rubber, 9 F.3d at 838. In the computer-software context, the doctrine means that the elements of a program dictated by practical realitiese.g., by hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, target industry practices, and standard computer programming practicesmay not obtain protection. Id. (citing case examples); see Sega Enters., 977 F.2d at 1524 (To the extent that a work is functional or factual, it may be copied.); Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1473 (9th Cir. 1992) (affirming district courts finding that [p]laintiffs may not claim copyright protection of an . . . expression that is, if not standard, then commonplace in the computer software industry). As an industry-wide goal, programming [e]fficiency represents an external constraint that figures prominently in the copyrightability of computer programs. Altai, 982 F.2d at 708. Generally speaking, lock-out codes fall on the functional-idea rather than the original-expression side of the copyright line. ... (Program code that is strictly necessary to achieve current compatibility presents a merger problem, almost by definition, and is thus excluded from the scope of any copyright.). In trying to discern whether these doctrines apply, courts tend to focus on
Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
http://blog.actonline.org/2007/05/microsoft_paten.html -- Microsoft Patents FUD Report: Who is Actually Slinging it? My morning news review had me chuckling this morning. Following Matt Asay's post on the InfoWorld Open Sources blog, I watched Eben Moglen's passionate attack on the Microsoft/Novell deal and his analysis of Microsoft's supposed FUD strategy. http://www.youtube.com/watch?v=6YExl9ojclo In it, Moglen accuses Microsoft of going on a Be Very Afraid tour around the world designed to spread FUD about their patents and how they may affect Free Software. I nearly spit out my coffee I was laughing so hard. Moglen is being COMPLETELY DISINGENUOUS and he knows it. The reality is that Stallman, the Free Software Community, and anti-software patent advocates have been complicit in this supposed FUD campaign about Microsoft's Patents, and could it could be argued are actually LEADING it. I readily admit that Microsoft has made cryptic and/or blunt comments in the past about its patents and how Linux and/or Free Software may be infringing on them. I'll also admit that I don't know how solid Microsoft's case may be. Many of the patents could be bogus, the infringement cases could be weak, etc., (I still think, however, that the chances are pretty good they have a case on more than one of their patents). But, that isn't the point. Moglen, Stallman, and the Free Software community despise the entire idea of software patents and have been campaigning against them all around the world. In their efforts, they trot out the boogeyman of big, bad Microsoft using its mountains of patents to cripple Linux and Free Software at every opportunity. I don't really have time to look up all the examples of this, but here are just a few in addition to my references from earlier this week: Stallman raises the Microsoft patent boogeyman in his article Saving Europe from Software Patents: Later in 1998, Microsoft menaced the World Wide Web, by obtaining a patent affecting style sheets--after encouraging the WWW Consortium to incorporate the feature in the standard. It's not the first time that a standards group has been lured into a patent's maw. Public reaction convinced Microsoft to back down from enforcing this patent; but we can't count on mercy every time. The NoSoftwarePatents.org site plays up the threat from Microsoft's patents to Linux and Free Software throughout the site including: It would be naive to think that Microsoft and other large companies would not resort to patent litigation if open source continues to have such a dramatic impact on their business. It is conspicuous that Microsoft frequently mentions patents in a very close connection with the competitive challenge from open source. In 2004 alone, Microsoft projected to apply for approximately 3,000 patents worldwide, many of those in Europe. In July of 2004, NewsForge.com published a memorandum by a senior manager of Hewlett- Packard, one of the world's largest computer manufacturers. The respective E-mail predicted that Microsoft would use the legal system to shut down open source but would firstly await the outcome of the legislative process concerning software patents in the European Union. Those conjectures were based on a patent cross-licensing negotiation that the HP executive had with Microsoft, and on some clauses in that agreement. So, when it fits their strategic goal of killing software patents, Stallman et al talked as if the threat from Microsoft's patents was deadly real. Now that Microsoft is finally admitting they think Linux distributions ARE infringing their patents, they change their story. If they always assumed Microsoft's patents were bogus, why didn't they calm the fears of their developers rather than fan the flames in all their anti-patent rhetoric?? -- regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
Alexander Terekhov wrote: http://blog.actonline.org/2007/05/microsoft_paten.html -- Microsoft Patents FUD Report: Who is Actually Slinging it? My morning news review had me chuckling this morning. Following Matt Asay's post on the InfoWorld Open Sources blog, I watched Eben Moglen's passionate attack on the Microsoft/Novell deal and his analysis of Microsoft's supposed FUD strategy. http://www.youtube.com/watch?v=6YExl9ojclo In it, Moglen accuses Microsoft of going on a Be Very Afraid tour around the world designed to spread FUD about their patents and how they may affect Free Software. I nearly spit out my coffee I was laughing so hard. Moglen is being COMPLETELY DISINGENUOUS and he knows it. The reality is that Stallman, the Free Software Community, and anti-software patent advocates have been complicit in this supposed FUD campaign about Microsoft's Patents, and could it could be argued are actually LEADING it. I readily admit that Microsoft has made cryptic and/or blunt comments in the past about its patents and how Linux and/or Free Software may be infringing on them. I'll also admit that I don't know how solid Microsoft's case may be. Many of the patents could be bogus, the infringement cases could be weak, etc., (I still think, however, that the chances are pretty good they have a case on more than one of their patents). But, that isn't the point. Moglen, Stallman, and the Free Software community despise the entire idea of software patents and have been campaigning against them all around the world. In their efforts, they trot out the boogeyman of big, bad Microsoft using its mountains of patents to cripple Linux and Free Software at every opportunity. I don't really have time to look up all the examples of this, but here are just a few in addition to my references from earlier this week: Stallman raises the Microsoft patent boogeyman in his article Saving Europe from Software Patents: Later in 1998, Microsoft menaced the World Wide Web, by obtaining a patent affecting style sheets--after encouraging the WWW Consortium to incorporate the feature in the standard. It's not the first time that a standards group has been lured into a patent's maw. Public reaction convinced Microsoft to back down from enforcing this patent; but we can't count on mercy every time. The NoSoftwarePatents.org site plays up the threat from Microsoft's patents to Linux and Free Software throughout the site including: It would be naive to think that Microsoft and other large companies would not resort to patent litigation if open source continues to have such a dramatic impact on their business. It is conspicuous that Microsoft frequently mentions patents in a very close connection with the competitive challenge from open source. In 2004 alone, Microsoft projected to apply for approximately 3,000 patents worldwide, many of those in Europe. In July of 2004, NewsForge.com published a memorandum by a senior manager of Hewlett- Packard, one of the world's largest computer manufacturers. The respective E-mail predicted that Microsoft would use the legal system to shut down open source but would firstly await the outcome of the legislative process concerning software patents in the European Union. Those conjectures were based on a patent cross-licensing negotiation that the HP executive had with Microsoft, and on some clauses in that agreement. So, when it fits their strategic goal of killing software patents, Stallman et al talked as if the threat from Microsoft's patents was deadly real. Now that Microsoft is finally admitting they think Linux distributions ARE infringing their patents, they change their story. If they always assumed Microsoft's patents were bogus, why didn't they calm the fears of their developers rather than fan the flames in all their anti-patent rhetoric?? -- regards, alexander. What is utterly laughable is the fact that a purported copyright license like the GPL3 *cannot* effect matters concerning patents. If source code implements a patentable idea then the source code in quenstion cannot be copyrighted: “In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. See id., at 560. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. Specifically, 17 U. S. C. §102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” As we said in Harper Row, this “idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an
Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
Lee Hollaar wrote: [...] If there is a single way (or maybe a very, very limited way) of expressing an idea, it is said that the idea and the expression have merged and therefore the expression is not protectable by copyright. That has nothing to do with whether there is a patent that covers a method that can be implemented in software. There is, in general, a variety of ways to implement (express) the method, and therefore each implementation can have its own copyright. There is a whole bunch of patents boiling down to just a few tiny functions. See, for example http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1Sect2=HITOFFd=PALLp=1u=%2Fnetahtml%2FPTO%2Fsrchnum.htmr=1f=Gl=50s1=6,993,770.PN.OS=PN/6,993,770RS=PN/6,993,770 Can you come up with a variety of ways to implement it (variables names apart)? regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
Lee Hollaar wrote: In article [EMAIL PROTECTED] rjack [EMAIL PROTECTED] writes: What is utterly laughable is the fact that a purported copyright license like the GPL3 *cannot* effect matters concerning patents. If source code implements a patentable idea then the source code in quenstion cannot be copyrighted: That statement is completely wrong. Not if there are only a limited number of ways of expressing idea (no matter patentable or not). No? And given that the GPL3 (in its current form) is surely blatant misuse of copyright, it cannot effect any matters whatsoever. :-) regards, alexander. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
In article [EMAIL PROTECTED] rjack [EMAIL PROTECTED] writes: What is utterly laughable is the fact that a purported copyright license like the GPL3 *cannot* effect matters concerning patents. If source code implements a patentable idea then the source code in quenstion cannot be copyrighted: That statement is completely wrong. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
In article [EMAIL PROTECTED] [EMAIL PROTECTED] writes: Lee Hollaar wrote: In article [EMAIL PROTECTED] rjack [EMAIL PROTECTED] writes: What is utterly laughable is the fact that a purported copyright license like the GPL3 *cannot* effect matters concerning patents. If source code implements a patentable idea then the source code in quenstion cannot be copyrighted: That statement is completely wrong. Not if there are only a limited number of ways of expressing idea (no matter patentable or not). No? If there is a single way (or maybe a very, very limited way) of expressing an idea, it is said that the idea and the expression have merged and therefore the expression is not protectable by copyright. That has nothing to do with whether there is a patent that covers a method that can be implemented in software. There is, in general, a variety of ways to implement (express) the method, and therefore each implementation can have its own copyright. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
In article [EMAIL PROTECTED] [EMAIL PROTECTED] writes: Lee Hollaar wrote: [...] If there is a single way (or maybe a very, very limited way) of expressing an idea, it is said that the idea and the expression have merged and therefore the expression is not protectable by copyright. That has nothing to do with whether there is a patent that covers a method that can be implemented in software. There is, in general, a variety of ways to implement (express) the method, and therefore each implementation can have its own copyright. There is a whole bunch of patents boiling down to just a few tiny functions. See, for example http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1Sect2=HITOFFd=PALLp=1u=%2Fnetahtml%2FPTO%2Fsrchnum.htmr=1f=Gl=50s1=6,993,770.PN.OS=PN/6,993,770RS=PN/6,993,770 Can you come up with a variety of ways to implement it (variables names apart)? Sure. There are different ways, for example, to maintain the respective reference counts. Each would be copyrightable as long as it was original. That's not to say that any of them would not infringe the patent. Patents are a right to exclude, so just because you have a copyright doesn't mean that you won't infringe a patent. (Also, just because you have a patent doesn't mean that you can practice that invention without infringing another patent.) ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
In article [EMAIL PROTECTED] rjack [EMAIL PROTECTED] writes: Lee Hollaar wrote: In article [EMAIL PROTECTED] [EMAIL PROTECTED] writes: Lee Hollaar wrote: In article [EMAIL PROTECTED] rjack [EMAIL PROTECTED] writes: What is utterly laughable is the fact that a purported copyright license like the GPL3 *cannot* effect matters concerning patents. If source code implements a patentable idea then the source code in quenstion cannot be copyrighted: That statement is completely wrong. Not if there are only a limited number of ways of expressing idea (no matter patentable or not). No? If there is a single way (or maybe a very, very limited way) of expressing an idea, it is said that the idea and the expression have merged and therefore the expression is not protectable by copyright. That has nothing to do with whether there is a patent that covers a method that can be implemented in software. There is, in general, a variety of ways to implement (express) the method, and therefore each implementation can have its own copyright. We are not addressing the idea/expression dichotomy in the abstract. We are are in fact *assuming* that the source code in question (by definition) impliments a step (claim) in a legally patentable process. No matter *how* you write the source code (expression), by definition it constitutes a procedure (step) implementing an (patentable) idea. That source code is without copyright protection in the context of the process (software) patent. Specifically, 17 U. S. C. §102(b) provides: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. As we said in Harper Row, this idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an authors expression. No matter how many times you say it, or how you express the idea, you are still wrong. Copyright does not protect the idea (or process or system or method of operation). It does protect the particular expression of that idea. For example, in Atari v. Nintendo, Nintendo had a patent on the security system between the game and the console. There was also a claim of copyright infringement on the part of Atari. Atari tried a fair use defense but lost at the Federal Circuit because it has lied to the Copyright Office in order to see the source code listing that Nintendo had deposited. There is no indication that their attorneys, who certainly knew what Section 102(B) says, asserted that if there is a patent, there can be no copyright. Nor is there any indication that the judges at the Federal Circuit thought that that is the law. If that were the case, they could have easily dispensed with the appeal on that grounds, not saying that reverse engineering can be a fair use, but Nintendo doesn't get to claim it because of its unclean hands. So, do you have a case where a court said that if there is a patent that covers a portion of a computer program, there can be no copyright protection for that computer program (or maybe that portion)? Not a case about books and ideas, but one about patented methods implemented in computer software. ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
Re: GPLv3 comedy unfolding -- Microsoft Patents FUD Report: Who is Actually Slinging it?
Lee Hollaar wrote: In article [EMAIL PROTECTED] [EMAIL PROTECTED] writes: Lee Hollaar wrote: In article [EMAIL PROTECTED] rjack [EMAIL PROTECTED] writes: What is utterly laughable is the fact that a purported copyright license like the GPL3 *cannot* effect matters concerning patents. If source code implements a patentable idea then the source code in quenstion cannot be copyrighted: That statement is completely wrong. Not if there are only a limited number of ways of expressing idea (no matter patentable or not). No? If there is a single way (or maybe a very, very limited way) of expressing an idea, it is said that the idea and the expression have merged and therefore the expression is not protectable by copyright. That has nothing to do with whether there is a patent that covers a method that can be implemented in software. There is, in general, a variety of ways to implement (express) the method, and therefore each implementation can have its own copyright. We are not addressing the idea/expression dichotomy in the abstract. We are are in fact *assuming* that the source code in question (by definition) impliments a step (claim) in a legally patentable process. No matter *how* you write the source code (expression), by definition it constitutes a procedure (step) implementing an (patentable) idea. That source code is without copyright protection in the context of the process (software) patent. Specifically, 17 U. S. C. §102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” As we said in Harper Row, this “idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” rjack ___ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
