Re: software copyrights vs. patents

From: Abramson, Ron <abramson[_at_]HUGHESHUBBARD.COM>
Date: Fri, 10 Apr 1998 09:42:00 -0400

On Thu, April 09, 1998, Peter Jeffery <jeffery[_at_]phoenix.princeton.edu> wrote:
>
> My University is working on a revised intellectual property policy that,
> so far, says everything on our network is software, and thus comes under
> the patent policy rather than the copyright policy. Among other things
> this means any income something may generate is treated in a manner much
> more favorable to the University. But let's say the real reason for it
> is the alleged difficulty of distinguishing algorithms from content.
> What do you call a java applet in a web page for instance, when all it
> does is make a letter blink or something?
>
> Now I know that both industry and case law have made all kinds of
> distinctions between "content" and "programs," but is their some
> relatively simple list of principles somewhere as to how one judges
> the difference?

You can make an abstract distinction between the content and the programs, and, I think, deal with those aspects separately as required to reach sensible results.

Your example is a Java applet that performs some visual or GUI function. The same overlaping of programming with content goes on with fonts

(programs generate the font outlines), object-oriented structures
(programs encapsulated in the data structure), programmable logic arrays
(you store little gate "programs" but really for the purpose of

recording data) and a lot of other "new" (and not-so-new) stuff. The same issue's been around for years in the context of a GUI or graphical program qua "program" vs. the screen display it generates. (Remember the old debate in the Copyright Office about whether you could have a separate copyright registration for the screen displays generated by a program.) "Content" and "procedure" are often two aspects of the same physical entity. In each case (with the possible exception of fonts) the law has coped more-or-less adequately (in my opinion) by engaging in a process of abstraction.

Ron Abramson
<abramson[_at_]hugheshubbard.com> Received on Fri Apr 10 1998 - 13:48:00 GMT