It's all context

[rjack]

This is the most damning paragraph for the GPL in all of the Lexmark 
decision. It should convince even die-hard GPL fans that controlling 
software process patent rights with a copyright license is not possible.

"For like reasons, Judge Feikens is correct that a poem in the abstract 
could be copyrightable. But that does not mean that the poem receives 
copyright protection when it is used in the context of a lock-out code. 
Similarly, a computer program may be protectable in the abstract but not 
generally entitled to protection when used necessarily as a lock-out 
device."; Lexmark International, Inc. v. Static Control Components, 
Inc., 387F.3d 522 (6th Cir. 2004).

Likewise a computer program may be protectable in the abstract but not 
generally entitled to protection when used necessarily as a step in a 
software process patent. The GPL copyright license can have no control 
over software process patent steps because the code implimenting those 
steps is *not* eligible for copyright protection in the patent context.

It is a great disservice to open source computer programmers to be 
misled by Eben Moglen, Richard Stallman, Bruce Perens and other "free" 
software advocates. The GPL3
is effectively DOA. Stallman's rabid fanaticism concerning Microsoft 
will eventually marginalize "free" software.

There is no magic bullet to fight Microsoft's patent hegemony except 
other independently obtained software process patents. Let the education 
process begin for open source programmers. The dream of the GPL freeing 
programmers to do what they do best --- write source code --- is simply 
a dream. Without expending sufficient time and resources learning the 
legal methods for software patent applications, open source software 
projects will become an evolutionary dead end unless these projects seek 
out a corporate "patent" sugar daddy to protect them.

Microsoft is TERRIFIED of the thought of software patents in the hands 
of the little guy.

rjack