Re: (US) Free speech ./. (c)

On Tue, 03 Aug 1999, Edward Barrow <edward[_at_]plato32.demon.co.uk> wrote:
>
> On Mon, 02 Aug 1999, John Lederer <johnl[_at_]ibm.net> wrote:
> >
> > It also, I think, is starting to show technological cracks. The origins
> > of copyright, I think (I am no expert), lay in the relatively large
> > capital investment of setting type and creating printing plates. As
> > that investment goes down by technological advances like the Internet,
> > the need for extensive monopolies declines.
>
> This brings me to another comment on this thread, which is to suggest
> that in principle all intellectual property laws should embody the
> bargain which is explicit in patent law: a monopoly in exchange for
> publication. Confusion emerges with copyright because the same body
> of law applies to unpublished works where it performs the equally
> important function of granting to an author the right to decide whether
> to make the work public or to keep it private. I submit that the
> bargain has broken down most fundamentally in the software domain,
> where software producers can both enjoy monopoly rents and (by not
> publishing their source code) keep the idea secret.

There are any number of apparent inconsistancies which can be identified between copyright law, the original subject material (writings and maps), and Constitutional intent (promoting Science [Constitution speech for knowledge]), on the one hand, and computer software on the other. Pamela Samuelson, currently at the SIMS program at UC Berkeley, is one of the strongest propenents of the theory that copyright is misapplied WRT software. Several of her writings are available at her website (http://www.sims.berkeley.edu/~pam/). Other critics of copyright in general include Stephen Breyer, currently jammin' with the Supremes.

After 15 years of strong copyright protection for software (beginning roughly in 1984 with CONTU), the actual protections offered by copyright for software are generally found to be relatively weak (or "thin") for the following reasons:

• Copyright applies to content ("expression"), not ideas. While copyright protects against unauthorized wholesale copying of software, it doesn't protect the _ideas_ contained within the software.
• The doctrine of fair use (17 USC 107) has been found to allow copying of a program, even in its entirety, for the purpose of reverse engineering (Sega v. Accolade). http://www4.law.cornell.edu/uscode/17/107.html
• Significant aspects of "expression" in programs, including concepts such as windows and icons (Apple v. Microsoft), menu content (Lotus v. Borland), and even executable code (Sega v. Accolade) are not protected by copyright when they are either insufficiently novel or purely functional.

If your interests include free software (speech not beer), long copyright terms and legal support for using licenses to allow or disallow copying of software are used very effectively in a number of public licenses, including the GNU General Public License, in a bit of judo IP. The strengths of laws intended to restrict access to copyrighted works are used to ensure access to copyrighted works. Ironic.

If you're looking for aspects of intellectual property law which are likely to impose restrictions on the practice of software, I would suggest you look at contract law, particularly the Uniform Contracts Code, current implementation known as UCITA, and patents. The first is IMO (and in the opinion of many others) very badly formed. The latter has much more power than copyright.

-- 
Karsten M. Self (kmself[_at_]ix.netcom.com)
    What part of "Gestalt" don't you understand?

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