Re: What makes software copyrightable anyway?
Michael K. Edwards wrote:
When I try to reconcile early case law -- just from the US circuit
courts -- on the copies, derivative works, collections, and dungheaps
made during run-time, and which routine uses are infringing and which
aren't, the little engine in my non-lawyer head threatens to throw a
rod. And that's still how it is thirty years later, because the
people whose job it is to do something about it have run aground.
Instead of a workable Federal statute, parallel to copyright, patent,
and (Federal) trademark -- something that balances public and special
interests to set ground rules for fair trade in this new class of
intangible goods -- we in the US get abortions such as patents on
mathematical laws and business models on one hand and UCITA (a dead
letter outside the DC catchbasin) on the other. And can you really
say that Europe or Latin America or Australasiafrica is doing any
better?
It seems to me that in Brasil the situation is a little better:
1. we are not a common law jurisdiction.
2. our copyrights statute -- Author's Rights Law (Lei 9610/98) -- is
fairly recent.
2.a. it specifies (art. 7, XII) that computer programs are protected by
copyrights.
2.b. it further specifies (art. 7 § 1) that computer programs have
specific legal provisions (all contained, nowadays, in our Computer
Programs Law [Lei 9609/98]).
3. our trademarks+patents statute -- Industrial Property Law (Lei
9279/96) -- is also fairly recent.
3.a. it has the (genius IMHO) art. 10 that excludes from patent
protection (translation mine):
''
I - discoveries, scientific theories and mathematical methods;
II - purely abstract conceptions;
III - schemes, plans, principles or methods applied to commerce,
accounting, finances, education, publicity, fiscalization or lotteries;
IV - literary, architetonic, artistic, scientific works or any
aesthetical creation;
V - computer programs;
VI - information presentations;
VII - gaming rules;
VIII - operatory or surgical methods and techniques, as well as
therapeutical or diagnosis methods, for applications on human or animal
bodies; and
IX - all or part of natural living beings and biological materials
encountered in nature, even if isolated, including genoma and germoplasm
[?] of any natural living being and natural biologic processes.
''
4. even if, unfortunately, our Computer Programs law treats all computer
program copyrights licenses as use licenses contracts, we have a
Consumer Defense Act that puts strict limits in what types of clauses
should be allowed in such contracts.
Unless, of course, you give it away. Then you start charging people a
dollar a minute for answers and five dollars a minute for right
answers, unless Mystery Guy's already looked at it in which case it's
a hundred-dollar flat fee (it's going to be a hard one but you'll get
net help out of him). That's based on some kind of rational cost +
profit economics instead of an endless overhang of sunk costs and
residuals. Dumb looks, of course, are still free. This, surprisingly
enough, works even though it makes sense -- ask IBM.
Hmm, that only matters for stuff that raises questions instead of
answers them by itself. But that, actually, is where the money in
_software_ is (as opposed to software monopolies) -- stuff that lets
you do more, better, so you have new questions to ask. Add a premium
for real originality, too, if it's clear that some kinds of innovation
can't be funded without it. Software patents are anathema around here
and I'm not even going to try to root for them when today's USPTO is
playing goalkeeper; but believe it or not, that would be fixable if
software economics wasn't a pipe dream.
This scenario have the further advantage of generating more jobs, and --
important for thirdworlders -- more *local* jobs. It generates more jobs
here AND abroad, and this is maybe the most important point of Free
Software macroeconomics IMHO.
For starters, you recognize that bits on disk aren't really a single
type of good, they're two. No, not 0s and 1s. Not Program and Data
either, that's so 1950. You've got your digital "soft goods" like
recorded music and movies and e-books and video games and other kinds
of e-toys -- consumables that people feed into orifices other than
their mouths. And then you've got the software that runs the world.
I don't know if I see the difference, but...
So yes, U. S. Federal District Court of Indiana, take the GPL away
from us open-source zealots. And put it in the law books where it
belongs.
Cheers,
- Michael
(RMS, Linus, if you ever read this I hope you think it is funny and
not insulting.)
With all respect I have for both, I don't know if RMS's coding is
superior to Linus'... :-)
Massa.
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