Greg Aharonian continues his crusade against the concept of using copyright to protect software:

DUE PROCESS: THE CRAZY RELATIVE IN DIGITAL
COPYRIGHT'S ATTIC, PISSING ON GPL
by Greg Aharonian
Publisher, Internet Patent News Service
Harvard University, November 3rd
Emerson Hall - Room 305, 6:00 PM

Is there no notice before trial for what are the ideas in a source code that the public has a constitutional right to freely use? Does software copyright rest on too many undefined, but definable, terms such as "expression", "idea", "form", "process", "method", "instruction"?
Does the complete expansion of software patents (which protect ideas, processes, structures) to all aspects of software imply no aspects are copyrightable (which is denied to ideas, processes, structures). In light of decades of conflicting and confusing district and appeals court decisions (e.g., Whelan vs. Altai), and many reversals by appeals courts (Lotus, Lexmark), are there enough facts to substantiate that Congress has provided no "intelligible principles" to the courts and the public for separating idea from expression in software, leaving the public with no notice? Is software copyright only "tacitly assumed" to be a law, which means it isn't?

Interesting questions? You bet. But not to copyright lawyers, who have never answered these fundamental software IP questions. Why?

Answer "yes" to even a few of these questions, and at a minimum, there is nothing copyrightable about source codes, leaving hacks like the GPL completely impotent (especially given the gutless handling of "derivative"
by the GPL crowd). Answer "yes" to many of these questions, and there is nothing copyrightable about computer programs in general. Surprisingly, for the most part, none of these questions relating to Due Process have been addressed by lawyers and the courts in over 20 years of trying to shove, push, and twist software to fit into copyright. Why the silence (starting with Nimmer)? Copyright violations are criminal; criminal laws can't be vague; copyright is certainly vague - three simple assertions, one radical conclusion - and this has never been discussed?

In this lecture, Greg Aharonian, publisher of the Internet Patent News Service, and not a lawyer, will be reviewing many troubling oversights of the law that question applying any of copyright to source code. Topics to be covered include:

- caselaw: Morales, Hoffman, Whitman, Walton, FERC, Intel, Diamond
- disparagement of copyright's vagueness by lawyers and judges:
Zittrain, Lessig, Weinreb, Samuelson, Menell, ABA, Hand
- is software copyright not a law: Nimmer, Samuels, Apple?
- does software copyright rest on too many undefined terms?
- software is literary: a legal fiction the courts don't even believe?
- can courts even recognize idea and expression: Lotus, Lexmark?
- is the Copyright Office's Section 265.05 - unethical?
- problems with the ill-defined merger doctrine
- ideas, processes, methods - the complete overlap of software patents
and copyrights
- Altai: movie theory wrongly applied to software engineering
- copyright's filtration of ideas (Altai), but not patentable ideas?
- Leatherman/Lexmark: do combinations of lines of source code never
lose their functionality to be expressive?
- should hardware/software codesign principles affect IP law?
- is anything left to be copyrighted, after eliminating what court's
have ruled is not copyrightable in software and what is patentable
about software?
-
- conclusion: there are too many fundamental problems at the heart
of software and digital copyright not being discussed by the
legal system
- conclusion: the censoring of Due Process concerns by IP lawyers
must stop - it allows completely vague boundaries (such as
between idea and expression) to injure and hurt the public

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Greg Aharonian is a scientific consultant to law firms and corportions, specializing in determining the (in)validity and (un)enforceability of patents, especially software patents. He also publishes the Internet Patent News Service, a daily email newsletter reporting on patent and copyright policies and practices, some of which ends up on two of his Web sites, www.bustpatents.com (for patent quality) and www.patenting-art.com (for the growing patenting of art and entertainment). In 2004, his book "Patenting Art and Entertainment" was published by Nolo. He currently is based in San Francisco, but still misses Dunkin Donuts and Legal Sea Food.

posted by James DeLong @ 11:02 AM | Software

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