[Top][All Lists]

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: CSRG archives

From: Alexander Terekhov
Subject: Re: CSRG archives
Date: Tue, 04 May 2010 16:10:45 -0000

Hyman Rosen wrote:
> On 3/23/2010 5:44 PM, RJack wrote:
> > Hyman Rosen wrote:
> >> Any change to the functionality of a computer program, no matter how
> >> slight, satisfies the requirements of originality. Pretending
> >> otherwise might be good for pontificating to your fellow cranks on the
> >> internet, but not for anything more.
> >
> > Functionality isn't even eligible for copyright protection
> Changes to functionality are effected through changes
> to program text. Any such change in functionality is
> sufficient to satisfy the minimal requirements of
> originality.

Uh moron Hyman.

"While the originality standard is low, it does exist. In particular,
the laws stress that it is a programmer’s expression of some
functionality that may be protected by copyright, and not the
functionality itself. If code embodies the only way (or one of very few
ways) to express its underlying functionality, that code will be
considered unoriginal because the expression is inseparable from the
functionality. Similarly, if a program’s expression is dictated entirely
by practical or technical considerations, or other external constraints,
it will also be considered unoriginal. The originality of a program’s
functionality is irrelevant to its eligibility for copyright. Code
implementing a completely novel algorithm may not be copyrightable due
to a dearth of expressive alternatives. 


Minimum standard for copyright in literal elements (Lexmark)

The Lexmark court identified two doctrines—the merger doctrine discussed
supra, and the scenes a faire doctrine—as the appropriate tools for
determining how little expression was too little. Applying the merger
doctrine to source code, the court stated that “if the [program’s
unprotected underlying] 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.”39 If a
work represents one of only a few possible means of accomplishing a
task, it is not copyrightable. The scenes a faire doctrine has its
origins in narrative works, and means that expressions which are
“standard, stock, or that necessarily follow from a common theme or
setting” cannot be protected.40 “In the computer-software context, the
doctrine means that the elements of a program dictated by practical
realities—e.g., by hardware standards and mechanical specifications,
software standards and compatibility requirements, computer manufacturer
design standards, target industry practices, and standard computer
programming practices—may not obtain protection.”41 

If a portion of a program’s expression merges with its underlying idea
or is dictated by external technical considerations, that portion is not
copyrightable under Lexmark. In applying this rule to code, the Lexmark
decision directs courts to “ask whether the ideas, methods of operation
and facts of the program could have been expressed in any form other
than that chosen by the programmer, taking into consideration the
functionality, compatibility and efficiency demanded of the program.”42
The court clearly implies that the capacity for originality in a
computer program is to some degree a function of the program’s size,
stating that for a very large and complex program, “it would have been
exceedingly difficult to say that practical alternative means of
expression did not exist,”43 and that a small program’s “size…[may]
dictate the content of the…[p]rogram.”44 

Lexmark provides some specific guidance as to what sorts of available
variations are insufficient to demonstrate a program’s originality: that
there exist “different ideas or methods of operation altogether” for
achieving comparable functionality, because these are not
“copyright-protectable expression;”45 representing a formula with a
look-up table;46 and re-ordering constituent formulae in a manner
analogous to paraphrasing.47 More generally, the court exhibited
disregard for conceivable variations that would be “trivial,” and would
not constitute “material changes” or “make any ‘substantial difference’
to the nature of the program.”48 "

Interestingly enough
lacks attribution/authorship acknowledgement for that document which is
of atypically good quality v. typical SFLC's nonsensical bullshit.


P.S. "I'm insufficiently motivated to go set up a GNU/Linux system 
so that I can do the builds."

Hyman Rosen <> The Silliest GPL 'Advocate'

P.P.S. "Of course correlation implies causation! Without this 
fundamental principle, no science would ever make any progress."

Hyman Rosen <> The Silliest GPL 'Advocate'

(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)

reply via email to

[Prev in Thread] Current Thread [Next in Thread]