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I'm going to go with albert on this one | 118 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
I'm going to go with albert on this one
Authored by: Anonymous on Sunday, July 07 2013 @ 06:43 PM EDT
Copyright regulate copying only. If you don't copy but create a function that
implements the same function you are not breaking copyright, even if your
creation is identical to the one some other claim copyright on.
Any programmer or author understands this. Do a lawyer?

[ Reply to This | Parent | # ]

I'm going to go with albert on this one
Authored by: dio gratia on Sunday, July 07 2013 @ 11:02 PM EDT

Merger Theory from Baker v. Selden. We also find §102(b) codified Merger:

There is extremely little legislative history on subsection (b), indicating perhaps that it was not viewed as particularly controversial. The House Report states that it was merely a codification of existing law, and was not intended to change the test in any way.[FN125] Since it is contained in section102 (dealing with copyrightable subject matter), rather than being contained in or following section 106 (dealing with the scope of the exclusive rights in copyright), Congress presumably intended to relate the idea-expression dichotomy to the nature of a work, and not simply to the test of substantial similarity.[FN126]

There is some indication, however, that section 102(b) was intended to emphasize the narrow scope of protection in order to allow expansion of copyright to new technologies. [FN127] The language of section [p. 351] 102(b) was added in the 1969 version of the copyright bill.[FN128] The primary relevant testimony that would seem to explain why the section was added deals almost exclusively with the issues raised by inclusion of computer programs within the copyright scheme.[FN129] The section was particularly designed to assure that copyrightable programs would create a monopoly only in the particular implementation of a method, not in an entire method for accomplishing a particular task.[FN130] The basic concern prompting the inclusion of section 102 was one involving a work of utility, a concern to which the dichotomy seems best suited.[FN131] Ultimately, section 102 would allow the expansion of copyright law specifically to cover a new subject matter.

Emphasis added.

Oracle makes much of Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc the "structure, sequence, and organization" of ..."significant subroutines", while as indicated over signifying the importance of RangeCheck and where Google has demonstrated independent creation of other methods.

In 3. Application of the Idea-Expression Dichotomy:

The difficulties of applying the traditional doctrines to computer programs stem from the "hybrid" nature of such programs. Computer programs, according to the OTA Report, "are hybrid functional works insofar as they employ words and symbols to implement and control a process."[FN212] Thus, with computer software programs
the difficulty is protecting their descriptive aspect—the symbols used in the program—without at the same time protecting their functional aspect—what the symbols do in a computer. Because programs possess both a symbolic and functional nature, copyright may either protect too little if the copyrightable expression is limited to the literal program code, or too much if the copyrightable expression extends beyond the program code.[FN213]
The OTA Report reviewed some of the cases indicating that courts are choosing the broad definition of expression to include "the logic, design, structure, performance or even the output of the computer program."[FN214] The OTA Report concluded by observing:
In theory, none of these rulings is permitted under traditional copyright principles. This is not because the courts have misinterpreted copyright law, but because copyright law cannot be successfully applied to computer programs. Unlike artistic or factual works, which are subject to the "abstractions" test between idea and expression, copyright in computer software is an either/or choice. . . . The "clear distinction" made in Baker v. Selden, "between the book, as such, and the art it is intended to illustrate," collapses in a computer program, because the program embodies both "the book" and "the art."[FN215]
The idea-expression dichotomy is viewed logically as a limitation on the copyrightability of works.[FN216] If one did away with the dichotomy, then one might expect that more, not fewer, works would be amenable to protection under copyright law.[FN217] How is it, then, that [p. 369] the OTA Report, after criticizing the applicability of the idea-expression dichotomy to computer programs, seemed to conclude that the protection of computer programs is thereby made less appropriate?[FN218] The Report stated, after all, that it is "wrong" to include "the logic, design, structure, performance or even the output" of a program within the protection of the copyright law.[FN219]
Emphasis added, and which represents an expansion of copyright law regardless of §102 (b) through Oracle's reasoning. The entire law review article The Idea-Expression Dichotomy In Copyright Law by Edward Samuels is worth reading, it speaks directly to this case.

[ Reply to This | Parent | # ]

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