Re: The death of copyright in software

[rjack]

Stefaan A Eeckels wrote:
> On Wed, 30 May 2007 13:51:34 -0500 rjack <rjack@com> wrote:

> You can write a POSIX compliant shell that shares not one line of
> code with another POSIX compliant shell. You can write a C++ compiler
> that is structurally completely different from another C++ compiler,
> and there will be little doubt that both are protected by copyright.

First review some of the factors iterated in the Lexmark decision that
disqualifies computer source code for copyright protection:

1)    HARDWARE STANDARDS
2)    MECHANICAL SPECIFICATIONS
3)    SOFTWARE STANDARDS
4)    COMPATIBILITY REQUIREMENTS
5)    COMPUTER MANUFACTURER DESIGN STANDARDS
6)    TARGET INDUSTRY PRACTICES
7)    STANDARD COMPUTER PROGRAMMING PRACTICES
8)    FUNCTIONAL EFFICIENCIES

You may write one C++ compiler in Forth and another in Python but a
large element of the compiler source code is dictated by the very
exacting specifications of the target processor’s instruction set
[HARDWARE STANDARDS]. Another element of the source code is dictated by
the very exacting C++ Language Specification [SOFTWARE STANDARDS]. A
language compiler is a very functional, rule driven program by its very
definition.

“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. Id. (citing case examples); see Sega Enters., 977 F.2d
at 1524 (“To the extent that a work is functional or factual, it may be
copied.”); Lexmark International, Inc. v. Static Control Components,
Inc., 387F.3d 522 (6th Cir. 2004).

Run your C++ compiler code through the
“abstraction-filtration-comparison” test in the hands of an expert
witness in court and your source modules look like Swiss cheese with
VERY large holes. If the programmer’s comments have been stripped (very
likely) and trivial obfuscation steps have been applied, your copyright
protection is virtually non-existent.

With respect to computer source code the copyright is in the context.
Your best hope for copyright protection is to print your compiler code
on glossy paper and frame it as a work of art and not to claim
protection for use as a functional program.

rjack