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Saturday, July 5, 2003

Patents and Copyright: Two Different Purposes

I wanted to buy a report summarizing Caldera International's financials for the last 3 years, which is available on Edgar Online from one of its partners for $20. So I clicked on the Buy Now icon and was presented with the following "Important Legal Information":

"The information provided herein is protected by copyright and intellectual property laws. It may be displayed and printed for your personal, non-commercial use only. You may not reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate the information to anyone, without the express written consent of Multex and the research provider."

Um...huh? If I can't do any of those things, then why would I want it? They appear to be saying I can read and learn and I can think about what I read, but I can't share with anyone what I now know? That's not copyright law, not by a mile. Their wording wipes out fair use completely. What other IP laws could they mean? Unless it's encrypted, the only IP law I could think of that could grant a creator an exclusive interest like that is patent law. And even under patent law, you can still talk about the thing patented, even in a writing which you could put online.

I don't see how Caldera's financials, no matter how creatively composed could qualify for a patent. And patent law only covers, or is supposed to cover, things so novel and non-obvious that they represent a clear step forward in a functionality that is useful, and then the exclusivity is only for 17 years, not life of the author plus his kids, as under copyright law currently, nor "to time indefinite, even forever" as under Edgar's wording.

There is an important difference between the purpose of patent law and that of copyright law. Here are some cases and one essay on the subject that will show the difference, specifically with regard to software, though the courts themselves haven't quite finished being confused themselves about software, but here is the dominant thinking so far.

First let's go back to 1879, a case involving a book about a bookkeeping system, Baker v. Selden, 101 U.S. 99 (Mem), 11 Otto 99, 25 L.Ed. 841. The author of the book called it copyright infringement for anyone else to write a book about bookkeeping and have the same kinds of methods he described in his book, methods which are today pretty much universally used in accounting but were then unique to the author. Specifically, he said his method of drawing columns and lines were copyrighted. By that he meant that since he had a method of bookkeeping that involved ledgers, with lines drawn to make columns, etc., no one else could do that too without infringing his copyright.

The Supreme Court said that while the actual text of the book could be copyrighted, the "art" it sought to describe was not copyrightable. By publishing his idea instead of patenting it, he lost any claim to the "art" his book described.

"The use of the art is a totally different thing from a publication of the book explaining it. The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book. Whether the art might or might not have been patented, is a question which is not before us. It was not patented, and is open and free to the use of the public. And, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it."

That is why I can't stop you from making and selling watches just because I wrote a book on how watches are made. I can't even stop you from writing about how watches are made, as long as you don't steal my wording or expression. If I invent a brand new method of time-keeping, on the other hand, I can get a patent, assuming my invention really is something new and not obvious. If I write a book about my new method, however, instead of patenting it, the copyright I get covers my actual wording and arrangement of words, not the ideas themselves.

This distinction is very important, because the two laws were orginally designed to serve the public good differently. In the case of patents, the purpose was to encourage inventions that would benefit the public by making sure the inventor got a short period to exclusively use and market his invention, after which the whole world got to enjoy it. Because technology grows in increments, one inventor building on the work of those before him, it was seen as in the public interest to let inventors design something brand new that adds on to something already invented and still get a patent, as long as the inventor hadn't adopted all of the elements, or their substantial equivalents, of a prior patent claim.

Copyright, on the other hand, was designed to allow the free flow of ideas, while protecting the authorship that goes into precise expression of them. This was an acknowledgement by Congress that the public has an interest in an interchange of thoughts and ideas, whereas principally the author has a direct interest in how he phrased it. It is because ideas themselves can't be copyrighted that copyright protection was allowed, from the very beginning, to last longer than patents, because it was viewed as something that could be allowed without harming the public's interest unduly. How long is too long is the current debate, but longer than patents isn't at issue. At least, that was the traditional thinking.

An essay, "Applying Fundamental Copyright Principles To Lotus Development Corp. v. Borland International, Inc.", explains very clearly the difference between the two forms of protection, in discussing a famous software case which involved the question of exactly what is it about software that can be copyrighted. In fact, the essay is more or less identical to an amicus brief the two authors submitted in the Borland case. Borland had made a spreadsheet program that looked virtually identical, in one aspect, to Lotus 1-2-3, except that where commands in Lotus would be entire words, in Borland's version, you used the first letter only. The interface's menu tree was the same. The lower court said it was copyright infringement, but on appeal, the judge, who had read this essay's content in an amicus brief, overruled. It's interesting to follow the essay's train of thought. The authors first make a distinction between how inventors invent and authors write:

"Later inventors thus can apply a 'ground up' approach to reliance on protected works that precede. Once they are outside all patent claims, they are safe. Later authors, however, must adopt a 'top down' approach and take a serious risk of being held liable for infringement as their reliance becomes more detailed. The different foci of patent and copyright law explain their different approaches to infringement. The social utility of allowing subsequent authors to make minor variations on a copyright-protected novel is minimal. For works of fiction, art, and music, variety is the spice of both legal and real life. We prefer to have one hundred different war novels than one hundred versions of "War and Peace" that differ only in their final chapter. Consequently, the broad scope of copyright protection for novels and the long period of its duration fulfills the goal of recognizing the author's creativity without unduly hindering later authors or depriving society of desirable works.

"....In the case of technological products we have drawn the social policy balance at a different point than for traditional works of authorship because we believe that to grant intellectual property rights in ordinary engineering advances would hinder the development of more and better products than it would encourage. Hence the 'nonobviousness' requirement of patent law, as well as its shorter term and disclosure requirements, recognize and promote the incremental nature of technological innovation."

What, though, is software? An expressive literary work? Or a technology? Of course, it is both, depending on how you look at it. It's written, but it's for a utilitarian purpose. For that reason, some software code can be patented and some can be copyrighted. Only something new and nonobvious can be patented, but what is it about software that can be copyrighted? Is it the source code itself? The underlying ideas? Or what it makes the computer do? That last was the exact question in Borland.

Ideas in software are not copyrightable, any more than in books, as per Baker v. Selden. Code itself is copyrightable, except in one respect -- code that is merged into a "method of operation". A game figure, for example, might be copyrightable with respect to his appearance on the computer screen, because his appearance is arguably aesthetic and not functional in nature, but the idea of a fighting figure in a game isn't. And other than that, what is normally copyrightable isn't what is on the screen; it's the actual code, not the result of the code, not the processes, operations, or methods by which the user actually employs the program. The law covers computer programs to the extent that they incorporate authorship in the programmer's expression of original ideas, as distinguished from the ideas themselves.

This is why, even when the end result is the same, as far as the user can tell, it isn't necessarily copyright infringement, because two programmers could sit down and decide to achieve a certain result and achieve it in unique code or even using entirely different computer languages. Also, there just aren't that many ways to achieve a certain functional result, so copyright here would have the effect of patent, shutting down anyone else's use of the idea, and that's the function of patents, not copyright. That's also why you need to be able to demonstrate a lot more inventiveness to get a patent than a copyright, which is now automatic.

Most cases before Borland had to do with whether or not exact copying had occurred in the first place. The court analyzed it like this:

" To establish copyright infringement, a plaintiff must prove "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original..... a plaintiff must first prove that the alleged infringer copied plaintiff's copyrighted work as a factual matter; to do this, he or she may either present direct evidence of factual copying or, if that is unavailable, evidence that the alleged infringer had access to the copyrighted work and that the offending and copyrighted works are so similar that the court may infer that there was factual copying (i.e., probative similarity). Engineering Dynamics, 26 F.3d at 1340; see also Concrete Mach., 843 F.2d at 606. The plaintiff must then prove that the copying of copyrighted material was so extensive that it rendered the offending and copyrighted works substantially similar."

The judge then cited the case, "Computer Assoc. Int'l, Inc. v. Altai, Inc.", 982 F.2d 693 (2d Cir. 1992), which held that software programs can be infringed by "nonliteral" copying, or copying that is paraphrased rather than word for word. In such a case, the judge said, you must determine if the similarity stems from the two works sharing the same underlying idea or whether the second author copied the first author's expression.

The Altai test to be used for nonliteral copying involves three steps: abstraction, filtration, and comparison. This is the test that Utah's 10th Circuit follows. Here is the judge's description of this test:

"The abstraction step requires courts to 'dissect the allegedly copied program's structure and isolate each level of abstraction contained within it.' Altai, 982 F.2d at 707. This step enables courts to identify the appropriate framework within which to separate protectable expression from unprotected ideas. Second, courts apply a 'filtration' step in which they examine 'the structural components at each level of abstraction to determine whether their particular inclusion at that level was "idea" or was dictated by considerations of efficiency, so as to be necessarily incidental to that idea; required by factors external to the program itself; or taken from the public domain.' Id. Finally, courts compare the protected elements of the infringed work (i.e., those that survived the filtration screening) to the corresponding elements of the allegedly infringing work to determine whether there was sufficient copying of protected material to constitute infringement. Id. at 710."

In Borland, however, it was the copying of the method, as opposed to the source code, that was at issue, so the Altai test wasn't in the picture. Borland admitted copying the method, so no sifting to determine if there was a copyrightable nugget was called for. Here the question, as the judge framed it, was "the more fundamental question of whether a menu command hierarchy can be copyrighted at all." Section 102 (b) of 17 U.S.C. says:

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

The judge, accepted that the menu tree was a method of operation, which it explained as meaning "the means by which a person operates something, whether it be a car, a food processor, or a computer", and was thus not copyrightable:

"Thus a text describing how to operate something would not extend copyright protection to the method of operation itself; other people would be free to employ that method and to describe it in their own words. Similarly, if a new method of operation is used rather than described, other people would still be free to employ or describe that method."

The menu commands at issue in the case, the judge pointed out, didn't just describe what users should do, it also served as "the method by which the program is operated and controlled." Borland hadn't copied the underlying code, but rather the method used to make it possible for users to do the same thing the same way. When the possible ways to express an idea are limited, identical copying is allowed. And if specific words are essential to operate something, they become part of the method of operation and are not copyrightable.

"The 'expressive' choices of what to name the command terms and how to arrange them do not magically change the uncopyrightable menu command hierarchy into copyrightable subject matter.

"Our holding that 'methods of operation' are not limited to mere abstractions is bolstered by Baker v. Selden. In Baker, the Supreme Court explained that

'the teachings of science and the rules and methods of useful art have their final end in application and use; and this application and use are what the public derive from the publication of a book which teaches them. . . . The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent.'"

The menu command hierarchy was more like the buttons used to control a VCR, the judge analogized. The fact that the buttons may be labeled "Play", "Reverse", or "Stop/Eject" doesn't transform the labels into a literary work. The buttons are how you make the VCR do what you want, a method of operation. Lotus had no user interface on top of the commands. But consider, the judge said, what would happen if you could copyright methods. Then program compatibility is ruined. The user would have to learn how to do the same operation, say Print, in a different way in each application used, which the judge said would be "absurd". Just being an original expression of an idea is not the only issue, he said. You must also determine if the original expression falls within exceptions to copyright protection in the law, one of which being a "method of operation":

"Original developers are not the only people entitled to build on the methods of operation they create; anyone can. Thus, Borland may build on the method of operation that Lotus designed and may use the Lotus menu command hierarchy in doing so."

I guess if you've read this far, you can see why SCO would have quite a time using copyright as a claim, unless it can prove exact copying. It claims to be able to do that, but I notice they didn't include a copyright claim in their amended complaint against IBM, although it's conceivable they might add one later, if the judge permits, but because the copyright wasn't registered, it seems unlikely. You might also see why patents are so controversial when it comes to software, their essential purpose being to block others from use of an idea, as opposed to copyright law, which specifically permits it.

So you can copyright the exact code but not the idea behind it, which is exactly the same as any other literary work. Just because Harriet Beecher Stowe wrote "Uncle Tom's Cabin", it doesn't stop the rest of the world from writing about slavery in the South or even having a character, a slave who runs away with her baby from her slave master. If you name your character Little Eva, and she runs over the ice chased by dogs too, and your book begins, "Late in the afternoon of a chilly day in February, two gentlemen were sitting alone over their wine, in a well-furnished dining parlor, in the town of P----, in Kentucky", well...then we might have a discussion. In a courtroom. Actually, we wouldn't need to any more, because the book, at least some editions of it, are now public domain, which is why you can download or read the Gutenberg edition online for free.

The Lotus v. Borland case was appealed to the Supreme Court, but the judges split 4 to 4, and when that happens, they don't hear a case, so it wasn't heard by the highest court. So it is conceivable that the same issue could be brought up again and heard. So far, however, SCO's argument, as opposed to their media threats, has been entirely contractual instead, and you can see why. Their claims about derivative code can't be made under copyright.

Linus was perfectly free to write original code that copies functionality in UNIX, under copyright law, as long as he didn't copy exact source code, which he says he never did. SCO has said that they have no evidence that IBM itself copied and pasted the allegedly identical code into the Linux kernel. Rather, they are arguing that under their contract with IBM, derivative works were to be given back to them, and so when IBM allegedly put some derivative code, under SCO's definition, into the Linux kernel, it then also became, to the extent of the contributed code, a derivative work, so, barring a complete extraction of the code no one can use Linux without getting a license from SCO for that code. That's what I am expecting to hear from them on the 9th.

There are some big questions in that progressive argument, but it's a stronger argument than a copyright claim would have been, especially because they don't appear to have a registered copyright, even if the suddenly discovered amendment to the Novell deal turns out to be authentic. But you can contract for whatever you wish, and the law lets you do that, if both sides agree. Whether SCO has the rights to derivative works will depend on how the judge interprets the conflicting language in the contract and how the court defines derivative.

With regard to Edgar Online, I decided not to buy the product on the terms offered. I viewed it as a license or contract on top of copyright law, on terms that were ridiculous, rather than an accurate expression of what copyright law says or an invocation of it.

You can't, under copyright law, forbid the buyer from talking about what they read or from making fair use of what is written. Ideas are not copyrightable, only the expression of them. I lost out on their analysis, so I am the poorer for it, and they lost out on my $20, which makes them poorer too. That's the trouble with trying to own ideas. It reaches a point where it all shuts down.

I also won't be signing up for an account with Edgar Online after all, because information you can't use is...well, useless. Conceivably, had I written about what I learned from their product, others might have signed up for their service, and accepted their partners' offers, so they may have lost more than just me as a customer.

Besides, it just plain sticks in your throat to buy something to read and then be told you can't say a word about it to anyone. There's something fundamentally undemocratic about a secrecy requirement like that. The author's desires for complete control have wiped out all of the public's rights of use. The whole point of copyright law was to allow the free expression of ideas while protecting the specific expression of it. Copyright law says:

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

So, I don't see how copyright law would enable Edgar to make the demands it did. Rather, I see copyright law saying they can't do what they are doing, at least not under the copyright umbrella. Here is some general information about copyrights. And here is Bitlaw's page on Works Unprotected by Copyright Law. And here is EFF on fair use. And here is a more complete list and analysis of important software copyright cases, with reference material, including the Borland case. If you are interested in how ideas can or can't be protected outside of copyright, here is an article on that.

I certainly had no intention of quoting in full or even in large amount, and I had no intention of selling anything from the Caldera report. My personal answer to all such IP merchants is this: I will never "steal", or misappropriate, what you have, out of my own sense of honor and fair play and because, as a writer myself, I naturally respect the intellectual efforts of others. But you have absolutely nothing that I want on those terms.

I also believe that the end result of the SCO case, no matter what happens in court, may well be that the whole world will say the same thing to SCO. The case is a consciousness-raising experience, you might say. By demonstrating how loathsome and damaging to the greater good proprietary software lawsuits can be, SCO has opened the world's eyes to some salient advantages of open source.

Nobody wants to do business on such terms as those SCO is proposing, if they have a choice, and in some cases, even if they don't. Linux provides that choice. I have no doubt that if identical code can be found and ruled infringing, it will be pulled out like a rotten tooth, and then Linux will go happily on without licensing anything from SCO. Nobody wants or needs a festering tooth.

comment [] 6:33:46 PM    

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