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Re: The GPL and Patents: ROFL

From: Hyman Rosen
Subject: Re: The GPL and Patents: ROFL
Date: Wed, 08 Dec 2010 15:59:59 -0000
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On 8/18/2010 2:45 PM, Alexander Terekhov wrote:

Hah! I knew that the AFC test was going to get thrown into
the mix by the cranks.

Any protection for elements dictated by efficiency or external factors
or processes must come from patents or trade secrets, if at all, and not
from copyright.

Here's what the Gates Rubber court said:
    source and object code, which are the literal elements of
    a program, will almost always be found to be protectable
    expression unless the doctrines of merger and scenes a faire
    come into play

The AFC test comes into play when the copyright holder alleges that
another work is infringing due to substantial similarity, and then
the courts must decide how much of that similarity comes from the
necessities of the design and how much from copying. Then the court
must pick apart the program into its various elements at different
levels of abstraction, and decide whether those are protectable. But
as the court said, source code is always protectable except in the
cases where there is only one natural way of writing it.

Really, I have no idea what this absurd discussion is even about
anymore. The notion that copyright does not apply to a computer
program which implements a patented process is patently ridiculous,
and would astonish the mega-corporations who hold both patents and
copyrights on their computer software. But holding astonishingly
false beliefs is another hallmark of the crank, so I suppose I
should not be surprised.

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