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

From: rjack
Subject: Re: GPLv3 comedy unfolding -- "Microsoft Patents FUD Report: Who is Actually Slinging it?"
Date: Fri, 25 May 2007 12:57:56 -0500
User-agent: Thunderbird (Windows/20070326)

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

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.”


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