On Dalke

[User923005]

However, to use object code as proof of infringement, there should be long stretches of identical code. Otherwise, we must examine the source code to know for sure.

This is simply false if we are talking about copyright infringement by the object code. For there to be copyright infringement two requirements must be met:
(1) the alleged copy must have a sufficient number of creative aspects in common with the alleged original;
(2) not a case of independent creation.

Requirement (1) is a property of the alleged copy itself (in this case the object code). It is NOT related to how the copy was created, i.e. from what source code the object code was actually generated. Whether requirement (1) is complied with, can be determined BY DEFINITION on the basis of the object code and the alleged original work (where the alleged original work is in fact the Fruit source code).

For (2) obviously it is relevant from what source code the allegedly infringing object code was generated (and how that source code came into existence), but once we get there it is completely reasonable to shift the burden of proof to the alleged infringer.

I do not see how a few tiny snippets of assembly that partially match and partially do not match can be used to prove what you claim. In fact, I find your position literally absurd.

This is quite funny given that I have not claimed any such thing. I only explain that looking at the assembly is THE WAY to determine whether requirement (1) is complied with.

In your (trivial) string operation example, the act of compilation weeded out all creative aspects from the resulting assembly. Copying the object code is not infringing, since there is no copyright on the object code. Requirement (1) cannot be met in that case.

For this:
"(1) the alleged copy must have a sufficient number of creative aspects in common with the alleged original;"
If those creative aspects mean:
"Used the same algorithm"
then you are wrong, unless there is a patent.

[User923005]

From http://www.lawtechjournal.com/notes/200 ... erland.php we have this:

Common Misconceptions

A few tests for patentability have come and gone, and some "conventional wisdom" on the subject is not supported by actual legal doctrine.

"You can't patent an 'algorithm'"

Not true. An algorithm, even a mathematical algorithm, is patentable unless (1) it is not sufficiently disclosed to overcome the "abstract idea" exception, or (2) it is executed with no useful application in mind.26 This description of just what an "algorithm" is may be helpful: "Although one may devise a computer algorithm for the Pythagorean theorem, it is the step-by-step process which instructs the computer to solve the theorem which is the algorithm, rather than the theorem itself."27 Under Alappat, the algorithm might be patentable. The theorem itself, being an abstract idea, certainly would not.

"You can't patent a 'business method.'"

False. This was a long-standing unfounded rumor based on a misreading of case law.28 Neither the Supreme Court nor the CAFC ever struck down a method patent strictly on the basis that it was useful for business.29 In State St., the CAFC said definitively, "We take this opportunity to lay this ill-conceived exception to rest."30

"You can't patent a process unless it involves a 'physical' element.'"

False. The Diehr court lists "transforming or reducing an article to a different state or thing"31 as "an example, not an exclusive requirement" of patentability.32 The Court of Custom and Patent Appeals (CCPA)'s Freeman-Walter-Abele test, which required a mathematical algorithm to be "applied to or limited by physical elements," has been seriously called into question by Alappat, State St., and AT&T. "Whatever may be left of the earlier test, if anything, this type of physical limitations analysis seems of little value."33 As discussed above, patents are being issued and upheld on inventions that amount to no more than calculating a number, as long as that number is useful information.

[syzygy]

For this:
"(1) the alleged copy must have a sufficient number of creative aspects in common with the alleged original;"
If those creative aspects mean:
"Used the same algorithm"
then you are wrong, unless there is a patent.

So obviously I do not mean that... sigh

Copyright is about creative elements.

Btw, your source on statutory subject-matter is outdated. The Supreme Court has thrown all those CAFC decisions out of the window with Bilski v. Kappos.

[User923005]

For this:
"(1) the alleged copy must have a sufficient number of creative aspects in common with the alleged original;"
If those creative aspects mean:
"Used the same algorithm"
then you are wrong, unless there is a patent.

So obviously I do not mean that... sigh

Copyright is about creative elements.

Right. I think we may be in agreement, then.
For instance, there used to be a patent on Lempel–Ziv–Welch data compression. Hence, if {say ten years ago} I had written a routine that used the Lempel–Ziv–Welch data compression algorithm, and failed to pay a royalty or whatever other restraints were imposed by the patent holder, I would have been in violation of the patent. Now, however, that the patents on LZW type compression algorithms have all expired I can write routines that do exactly the same thing using exactly the same method. However, if Joe Schmedlock writes an LZW compression algorithm, I cannot simply take it and call it my own. I have to write my own version.

Copyright with software is not the same as copyright with literary works. While the creative expression is protected, the algorithm is not protected (without a patent).

[hyatt]

From http://www.lawtechjournal.com/notes/200 ... erland.php we have this:

Common Misconceptions

A few tests for patentability have come and gone, and some "conventional wisdom" on the subject is not supported by actual legal doctrine.

"You can't patent an 'algorithm'"

Not true. An algorithm, even a mathematical algorithm, is patentable unless (1) it is not sufficiently disclosed to overcome the "abstract idea" exception, or (2) it is executed with no useful application in mind.26 This description of just what an "algorithm" is may be helpful: "Although one may devise a computer algorithm for the Pythagorean theorem, it is the step-by-step process which instructs the computer to solve the theorem which is the algorithm, rather than the theorem itself."27 Under Alappat, the algorithm might be patentable. The theorem itself, being an abstract idea, certainly would not.

"You can't patent a 'business method.'"

False. This was a long-standing unfounded rumor based on a misreading of case law.28 Neither the Supreme Court nor the CAFC ever struck down a method patent strictly on the basis that it was useful for business.29 In State St., the CAFC said definitively, "We take this opportunity to lay this ill-conceived exception to rest."30

"You can't patent a process unless it involves a 'physical' element.'"

False. The Diehr court lists "transforming or reducing an article to a different state or thing"31 as "an example, not an exclusive requirement" of patentability.32 The Court of Custom and Patent Appeals (CCPA)'s Freeman-Walter-Abele test, which required a mathematical algorithm to be "applied to or limited by physical elements," has been seriously called into question by Alappat, State St., and AT&T. "Whatever may be left of the earlier test, if anything, this type of physical limitations analysis seems of little value."33 As discussed above, patents are being issued and upheld on inventions that amount to no more than calculating a number, as long as that number is useful information.

I gave a specific term. "computer algorithm". And you can not patent one. Period. Algorithms, in general, doesn't necessarily imply computer anything. But computer algorithms are explicitly excluded.

[syzygy]

Copyright with software is not the same as copyright with literary works. While the creative expression is protected, the algorithm is not protected (without a patent).

There is no real difference. Copyright on a literary work only protects the expression, not the general story idea behind it.

There is a continuum between an unprotectable story idea and the protectable expression of this idea in the form of the story text. If you do not copy the literal expression, but you do copy the characters and the sequence of events, you might well infringe the original author's copyright. At some point you cross the line.

The same applies to software. The general algorithm is not protectable. However, lots of creative choices are made when implementing (highly non-trivial) algorithms. If you copy enough of those, you might well infringe the copyright on the original source code.

Of course rule 2 does not necessarily have to draw the line exactly where copyright law draws it (which probably varies anyway from jurisdiction to jurisdiction).

I think we may be in agreement, then.

Only if you agree that (apart from the issue of independent creation) copyright infringement by an executable can be determined on the basis of a study of that executable (and the alleged original work), simply because otherwise that executable is not infringing in the first place.

If I run gcc on a source code file, the result will usually be covered by the copyright on the source code file. The output of gcc is a derived work of the source code file.

If I run wc on a source code file, the result will certainly not be covered by the copyright on the source code file. The output of wc is not a derived work. This is because no creative elements of the source code file were retained by running wc on it.

I think the issue of patents is a separate one. That something is not protectable by copyright does not mean it is protectable by patents or vice versa.

[User923005]

Copyright with software is not the same as copyright with literary works. While the creative expression is protected, the algorithm is not protected (without a patent).

There is no real difference. Copyright on a literary work only protects the expression, not the general story idea behind it.

Here is some interesting reading. Sometimes I find that Stallman is over the top, but I happen to agree with him on this:
http://www.gnu.org/philosophy/software- ... tents.html

There is a continuum between an unprotectable story idea and the protectable expression of this idea in the form of the story text. If you do not copy the literal expression, but you do copy the characters and the sequence of events, you might well infringe the original author's copyright. At some point you cross the line.

I am not a legal expert, and so I tend to deal in generalities as they make sense to me. In fact, I no doubt sometimes see things through the lens of my own dyslexic and idealistic brain which might bend my understanding from what is really correct.

The same applies to software. The general algorithm is not protectable. However, lots of creative choices are made when implementing (highly non-trivial) algorithms. If you copy enough of those, you might well infringe the copyright on the original source code.

As long as we agree that the algorithm is not protectable, I find that we have agreement. I suppose that we still may quibble about what that really means.

Of course rule 2 does not necessarily have to draw the line exactly where copyright law draws it (which probably varies anyway from jurisdiction to jurisdiction).

I think we may be in agreement, then.

Only if you agree that (apart from the issue of independent creation) copyright infringement by an executable can be determined on the basis of a study of that executable (and the alleged original work), simply because otherwise that executable is not infringing in the first place.

While in principle, I agree that it may sometimes be possible to detect copyright infringement from examination of binary executables, in general, I think that this should really just be used to get the subpoena to view the actual source rather than to form some kind of decision. After all, we *do not have* the original source code. If there were huge clumps that were identical (and these clumps contain more than the standard library code and other public sources) then it would be reasonable to conclude that infringement is exceedingly likely. I do not think that we have that in this case.

If I run gcc on a source code file, the result will usually be covered by the copyright on the source code file. The output of gcc is a derived work of the source code file.

If I run wc on a source code file, the result will certainly not be covered by the copyright on the source code file. The output of wc is not a derived work. This is because no creative elements of the source code file were retained by running wc on it.

I agree with both of these reasonable statements.

I think the issue of patents is a separate one. That something is not protectable by copyright does not mean it is protectable by patents or vice versa.

I also agree with this. May I add that I agree with Knuth and Stallman on algorithm patents. However, I would do my utmost to obey any law even though I may not agree with it.

[User923005]

Knuth on software patents:
http://eupat.ffii.org/gasnu/knuth/index.en.html

P.S.
If there are any heroes in the world of computer programming, number zero is Donald Knuth.

[User923005]

Interesting link on software, copyright, patents, and law.
http://www.law.ed.ac.uk/ahrc/script-ed/ ... ksanen.asp

[lmader]

While in principle, I agree that it may sometimes be possible to detect copyright infringement from examination of binary executables, in general, I think that this should really just be used to get the subpoena to view the actual source rather than to form some kind of decision. After all, we *do not have* the original source code. If there were huge clumps that were identical (and these clumps contain more than the standard library code and other public sources) then it would be reasonable to conclude that infringement is exceedingly likely. I do not think that we have that in this case.

I definitely disagree with this. The amount of evidence brought forward in the Rybka/Fruit report was, IMO, more than enough for it to be "reasonable to conclude that infringement is exceedingly likely" and therefore to "get the subpoena", which is effectively what the ICGA did. They demanded that Vas show the source, or at least respond with an explanation. He refused.