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Re: GPLv3 comedy unfolding -- "Microsoft Patents FUD Report: Who is Actu

From: Lee Hollaar
Subject: Re: GPLv3 comedy unfolding -- "Microsoft Patents FUD Report: Who is Actually Slinging it?"
Date: Fri, 25 May 2007 12:36:55 -0600 (MDT)

In article <> rjack <rjack@com> 
>Lee Hollaar wrote:
>> In article <> writes:
>>> Lee Hollaar wrote:
>>>> In article <> rjack 
>>>> <> 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.”

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.

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