> 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).
Or perhaps better still, have IETF out-license its work under a license that
allows the copyrightable content to be freely copied....
I've been agitating for that because, as you point out, it is a thankless
task to ask a court to apply legal magic to abstract/filter/compare software
to separate 102(a) work from 102(b) work.
/Larry Rosen
Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
Stanford University, Lecturer in Law
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and
Intellectual Property Law" (Prentice Hall 2004)
> -----Original Message-----
> From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-
> COPYRIGHT[_at_]cni.org] On Behalf Of Gregory Aharonian
> Sent: Thursday, April 13, 2006 11:46 AM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] 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
>
>
>
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Received on Fri Apr 14 2006 - 01:00:30 GMT