Copyright and Computer Code

Marc's post below mentions copyright and computer code and brings up some interesting points regarding the current state of copyright law. Section 102 of the copyright code states that copyright protection may be extended to:

"[O]riginal works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

On its face, the law may seem quite clear, however many years of case law has struggled with the exact meaning of "works of authorship." How, exactly, do we define "authorship"? Must a work contain a requisite amount of creativity to be granted protection? Perhaps we should only grant protection to works with particular aesthetic qualities? Should we grant protection to simple copies? Only to copies that required a significant amount of work to reproduce?

In the end, courts have been loath to provide a definition of authorship that contains judgments regarding aesthetic qualities, or a necessary amount of hard work. Instead, a work of authorship may be found in anything containing some 'minimal' degree of creativity.

"Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be. Id., § 1.08 [C] [1]" (Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 111 S.Ct. 1282 (March 27, 1991)).

So, with only a minimal amount of creativity satisfying requirements for copyright, how does that affect computer code? Could a single define statement contain a minimal spark of creativity such that it should be awarded copyright protection? How about a series of define statements?

Certainly, there isn't much creativity in a define statement. After all, define statement are selected to have obvious meaning to the uninformed reader - a define statement containing too much creativity would be quite worthless.

However, when a coder selects the names for a series of variables, even if largely informed by a set of standards and rules, isn't there that spark of creativity? A particular order and format must also be selected for displaying the variables. The selection of a particular word to describe a particular value requires some amount of creativity. Perhaps such selection and organization also communicates some information about the structure and functionality of the code? Further, the define statements may be interspersed with comments - all presumably containing the necessary spark of creativity.

On the other hand, how many different ways are there to write a series of define statements? The variable name and the code's structure are largely determined by the project at hand. In many cases, several programmers working independently would probably come up with the same series of statements. If that is the case, then the code may fall prey to the idea-expression exception for copyright protection. If any idea can only be presented in one particular way, such that any expression of the idea would result in the same particular expression, then it cannot be granted protection. A simple recipe for cooking is a great example of information that may be creative in its particular format and display, but will be denied protection because, in the end, there is only one way to write a recipe.

The question of the copyrightability of a series of define statements is difficult. Increasingly, the trend has been to extend copyright to just about everything. Would the courts stop at define statements?

SCO group--formerly known as Caldera Systems

In 2003, the SCO group--formerly known as Caldera Systems--filed a $1 billion lawsuit in the US against IBM claiming that they had, without authorization, contributed SCO's intellectual property to the codebase of the open source, Unix-like Linux operating system.

Fast forward to 2007 where we discover in the latest March 7th hearings that out of the bajillion lines of GPL code in the Linux kernel, only 326 lines of code are said to be an issue. Furthermore, most of those lines are #define statements that specify abbreviations.

And just what is a #define statement? It's a statement that says "take this value, and assign it to this label." It's done so that when writing software, programmers can avoid using those values directly and instead use the labels.

Let's get back to SCO. Claiming these abbreviations, or shorthand, are copyrightable, is like trying to claim a copyright on abbreviating 10 Cir, when referring to the 10th Circuit Court of Appeals which is where this case will likely end up. That is, if SCO doesn't go bankrupt first.

Judge Linn on patent drafting

Not only do patent attorneys and agents find patent drafting incredibly frustrating, but judge seem to as well. As blogged by fedcirc.us, Judge Linn, a CAFC judge, grew frustrated during oral argument and stated the following:

“This is an interesting case...it's so typical of so many patent cases that are litigated and come up to this court. We have a term in the claim that's in dispute...it's not used anywhere in the written description. If that term was used in the written description, there wouldn't be this kind of debate. We're left hanging. Why patents are written this way I don't know. And then to compound the complexity, the application only has one embodiment, which of course puts into play this debate about '...is that just an embodiment or is that the invention'. We have both of these intriguing problems which are sort of self-inflicted by practicioners. I don't know why, but they're self-inflicted problems....”

Read the fedcirc.us analysis for a more thorough description of this case and the issues presented.

Terrorists becoming harder to profile

As reported by the Washington Post, terrorists are becoming more and more difficult to profile. The statement, though, begs a question:

Have we ever been able to profile them?

I think the only constant characteristic of terrorists is that they all tend to be pretty pissed off. Maybe we could start there?

The article provides several examples showing why profiling people to discover the "evil doers" is such a ridiculous idea:

In neighboring Belgium, people are still perplexed over what drove Muriel Degauque, 38, a blond, white Catholic, to convert to Islam and travel to Iraq to blow herself up in November 2005. Nizar Trabelsi, convicted two years earlier of plotting to bomb a NATO base in Belgium, had been a European soccer star before going to Afghanistan to attend al-Qaeda training camps.

In Britain, three of the suspects arrested in last summer's alleged transatlantic airline hijacking plot were religious converts who grew up in north London's affluent suburbs. One was the well-to-do English son of a Conservative Party activist; he worked in a bar and loved the movie "Team America."

Ford to Sell Aston-Martin

As reported by the NY Times, Ford is selling Aston Martin. The sale of Aston Martin - a luxurious sports car brand with its roots in England - will raise an estimated $848 million.

To be honest, I'm a little surprised that Ford has elected to sell Aston Martin. Personal observations in Phoenix lead me to believe that the brand was quickly becoming popular and probably profitable - something that you'd expect Ford to cling to.

Aston Martin, which was profitable in 2006 as sales increased by 50 percent, to 6,500 vehicles, is the first nameplate sold by Ford since it announced a revamping plan last year that it calls the Way Forward.

Although I love Aston Martins and hope that the brand doesn't change too much, I think these kind of major changes are very important if Detroit is going to weather this storm. Obviously the status quo isn't working. If Detroit is ever going to be the leader again something needs to change.

It'll start with the sale of some major divisions, but eventually the engineering will have to change too. With the caveat that Detroit actually survives, I'm really looking forward to all these changes.

Patent scope limited by the summary

Normally, the scope of a patent is limited by its claims interpreted in light of the specification. The claims are a series of sentences that describe the invention. In most cases, they are written so that they broadly describe the invention thereby giving the inventor the broadest possible patent and the broadest possible protection.

Sometimes, however, judges ruling on patent cases will rely so heavily on the specification that they artificially limit the scope of the claims. A lawyer whose case is hurt by such an interpretation often presumes that the judge couldn't understand the claims (which can often be confusing) and instead relied on the specification - a much simpler portion of the patent.

This is a case where the judge relied on the summary of the invention to interpret the claims. The summary is a minor portion of a patent that is often informal and only included to make the patent easier to find in the various patent databases.

Whether or not the ruling was legitimate, it is a great reminder the specification should in no way limit the invention or call out necessary or preferred characteristics of an invention.

Ernest Gallo, 97, Dies

Ernest Gallo of E. & J. Gallo Winery has died, reports the NY Times. I only recently became aware of Mr. Gallo and his winery after reading about them in a Trademark case dealing with another's similar trade mark. After reading the case, however, I now know that his winery is one of the largest in the country and imports a massive amount of Italian wines.

E. & J. Gallo Winery is the source of 'Thunderbird' wine. I've heard of it, but never tried it:

It was named after the Ford sports car and was aimed directly at “the misery market,” according to “Blood and Wine,” Ellen Hawkes’s unauthorized biography of the family. By the end of 1957, Ms. Hawkes reported, Gallo was making 32 million gallons of Thunderbird.

Tiny RFID Tags

As reported by the BBC, Hitachi has unveiled the world's smallest RFID tag. As always, an announcement like this will spur some debate about privacy and the advancement of technology.

Buffet says spend it quick

The Arizona Republic reports that Warren Buffet has expressed a hope that his money will be spent "quickly" after his death.

In his annual letter to shareholders of his holding company, Berkshire Hathaway Inc., Buffett said his will states that the proceeds from all shares he owns at death must be used for "philanthropic purposes within 10 years after my estate is closed."

"I want the money to be spent relatively promptly by people I know to be capable, vigorous and motivated," said Buffett, 76. "These managerial attributes sometimes wane as institutions, particularly those that are exempt from market forces, age."

I have always thought that the pinnacle of human achievement was not simply the acquisition of political power and wealth, but rather the ability to changes things for the better. I can think of no greater role model than Warren Buffet in that respect.

More Sirius-XM News

More Sirius-XM merger news from the NY Times.

This time it's an article describing the CEO of Sirius Radio, Mel Karmazin. The article provides a nice description of Mr. Karmazin and his enthusiasm for a successful merger.

Last week, Mr. Karmazin took his campaign to win over lawmakers and regulators to Washington with his pitch that a single satellite radio company would mean more choice and lower prices for consumers — rather than create a foreboding monopoly, as his former chums in the terrestrial radio business contend.

Speaking before an antitrust task force of the House Judiciary Committee, Mr. Karmazin said he was shocked by the very idea that anyone would see a monopoly as the logical result of merging the only two satellite radio broadcasters. “There is no monopoly or duopoly,” he told the hearing. “That’s the most bizarre thing I have ever heard.”

Sirius and XM on Capitol Hill

As mentioned below, Sirius and XM are starting to ramp up their efforts to get their merger blessed.

Earlier today I happened upon their hearings on C-SPAN and was not surprised by their arguments. They maintain, of course, that there are innumerable ways for competitors to compete with satellite radio. Here's a brief list:

• Large terrestrial radio companies could provide high-quality nation-wide radio
• Cell phone companies could use their networks to distribute content which could then be played over car or home stereos via blue-tooth (yes, seems quite convoluted)
  
• A collection of 802.11 networks could be used to transmit high quality radio

I didn't watch for long, or else my list would be a lot longer.

I'm not sure how I feel about a merger. On the one hand, it seems that satellite radio is a true paradigm shift and that for other companies to provide similar services they'd have to do it through the satellite radio network. On the other hand, satellite radio doesn't seem that great. If it can't be outdone then I'd be amazed. And, I think, if the merger leads to better solutions, then let it go ahead.

BBC and YouTube

As reported by the BBC, the BBC has entered into a deal with YouTube that would create three new channels showing BBC content. One channel will be dedicated to clips of news programs, while the other two will focus on entertainment content.

Although other major content owners have entered into similar deals with YouTube, the motivations of the BBC may be slightly different from those of other companies. Presently, the BBC is funded almost entirely by money provided by tax payers in the UK. Accordingly, it is difficult for the BBC to provide content to people who reside outside of the UK. If they did, people in the UK would be understandably upset. After all, it's the citizens who are paying for the content to be created. To reach an international audience, the BBC must find a way for advertising revenue to offset the tax revenue.

Enter YouTube. A convenient and simple way for the BBC to share content and, at the same time, collect advertising revenue and please the people!

Fighting Spam

The NY Times has an article providing some tips and tricks for avoiding spam. It basically boils down to using spam filters... Yay, great advice.

But... the article did remind me of a funny story I heard about Lawrence Lessig over at Standford Law School. Apparently, several years ago, he became so overwhelmed with the amount of spam that he was receiving that he simply declared 'email bankruptcy.' He sent an apology email to the people in his address book and then retired his email address... forever.

Although most people consider an email address to be at least semi-permanent, I think we may start seeing more email bankruptcy as the spam problem gets out of control.

IKEA Charging for Plastic Bags

The Arizona Republic reports that IKEA is going to start charging for plastic bags at all of its American locations. The goal, of course, is to force people to internalize the cost of their garbage. It's awfully difficult to do with pollution - how can we measure the pollution an individual creates - but it's easy for garbage. Simply charge people when they buy what will, inevitably, make its way to the garbage pile. The result is, hopefully, more re-use by those that don't want to pay for more bags, and less trash for the city.

It seems to be working:

The program, originated in Ikea's British stores last year, reduced consumption of bags at those locations by 95 percent, Liss said. Ikea will donate the first year's proceeds from U.S. sales of the five-cent bags to American Forests, a Washington-based conservation nonprofit.

This article brings to mind an interesting book called "Cradle to Cradle." It describes the entire life-cycle of our disposable goods - from purchase to trash heap - and makes apparent that many of us don't think of what happens to the stuff we throw in the trashcan. It just "disappears."