re: IETF/source code copyright status

Lawrence Rosen writes:
>The IETF is trying very hard to be honest and generous.
>I am, however, in strong agreement with Mr. Riolo's second point. It is
>about time the copyright community stopped saying that "anything written is
>copyrighted" and remember that-at least in technical fields-section 102(b)
>is co-equal with 102(a): The Merger Doctrine survives in U.S. copyright law.

So how about getting the IETF to mark all standards and associated source codes with flags indicating which sections are 102(a) pure-expression, and which sections are 102(b) idea-expression that are freely copyable? People should not have to go to court to be told which is which, especially after the bizarre history seen in Lexmark, where in the 21st century, courts were arguing over whether or not computer program control codes are copyrightable. For example, how about a blanket IETF policy that any control codes in IETF standards are not copyrightable? That way, users of such IETF standards don't have to suffer a district court ruling that control codes are not functional (fortunately, the appeals court in Lexmark stepped in and stopped such nonsense, at least in that Circuit).

Karen Coyle writes:
>> Lawrence Rosen wrote:
>> Some technical works can be freely copied regardless of copyright
>> claims; licenses aren't always needed.
>>
>This seems a bit odd to me in a world where computer code is
>copyrightable. I read section 102(b) to focus on ideas, not their
>expression, and the original post was about reproducing the RFC's in
>their entirety. Can you give examples of technical works that are
>considered exempted by 102(b)?

Read the latter part of 102(b), which interestingly has never really been discussed in caselaw:

      In no case does copyright protection .... extend to any idea
      .... REGARDLESS OF THE FORM IN WHICH IT IS
      DESCRIBED, EXPLAINED, ILLUSTRATED, OR EMBODIED in such work.

Now, one of the dictionary definitions of "form" is "method of expression" opening up the following variant of 102(b):

      In no case does copyright protection .... extend to any idea
      .... REGARDLESS OF THE METHOD OF EXPRESSION IN WHICH IT IS
      DESCRIBED, EXPLAINED, ILLUSTRATED, OR EMBODIED in such work.

Are descriptions, explanations, illustrations and embodiments, are they expressions? At least at the appeals court level, this question has never really been addressed, except in one case where the court pretty much said yes, though not very clearly, and then only in a footnote.

So ask yourself. Does source code describe, explain, illustrate and/or embody the idea, processes, system (structure), methods of operation, and concepts in a computer programs (all aspects of which are ideas under patent law)? When patents and Web pages dealing with source code uses phrases such as "source code illustrates", are they using "illustrate" with the same meaning as in 102(b)? If so, this latter language of 102(b) raises its ugly head. I assume this is what Larry is referring to.

Greg Aharonian
San Francisco, CA Received on Thu Apr 13 2006 - 22:45:45 GMT