Header file legal issues (was Re: process.h patch)

David Elliott dfe at infinite-internet.net
Thu Feb 15 18:36:22 CST 2001

Patrik Stridvall wrote:

> > >   The court in that case said:
> > >
> > >     Computer programs pose unique problems for the
> > application of the
> > >     "idea/expression distinction" that determines the
> > extent of copyright
> > >     protection.  To the extent that there are many possible ways of
> > >     accomplishing a given task or fulfilling a particular
> > market demand,
> > >     the programmer's choice of program structure and design
> > may be highly
> > >     creative and idiosyncratic.  However, computer programs
> > are, in essence,
> > >     utilitarian articles -- articles that accomplish tasks.
> >  As such, they
> > >     contain many logical, structural, and visual display
> > elements that are
> > >     dictated by external factors such as compatibility requirements
> > >     and industry demands... In some circumstances, even the
> > exact set of
> > >     commands used by the programmer is deemed functional rather than
> > >     creative for the purposes of copyright.  When specific
> > instructions,
> > >     even though previously copyrighted, are the only and
> > essential means
> > >     of accomplishing a given task, their later use by
> > another will not
> > >     amount to infringement.
> > >
> >
> > Hmm, I am not so sure I like all of that.  Program code
> > serves two purposes.  For one
> > thing it is functional, and for another (and actually for the
> > most part) it has a
> > human readable structure.
> I think you have missunderstood what the judges meant.
> The fact the computer programs are functional doesn't take away
> their copyrightabillity. But copyright only protects the creative
> expression and then the form of these expressisions are dictated
> by external factors such as in the courts words "compatibility
> requirements and industry demands" they are not creative expression
> and thus not copyrightable.

It almost sounded to me as if they were saying that it was purely
functional.  But then again I didn't read it really carefully.  The correct
representation is that they are creative but then yield a function.  The
creative part (the source code) should be copyrightable, but the actual
functionality should not be, and it should be perfectly legal to duplicate
the functionality of a piece of code so long as you do not actually verbatim
copy the copyrighted source code.

Protecting the functionality would be an issue for patents and not
copyrights.  And with the exception of things like the RSA patent, software
patents for the most part have not been working.  Of course, IIRC the
RSA patent is not actually a software patent but a patent on a hardware
implementation of the algorithm.

> Not that fact that the court said "functional" and not
> "is not a creative expression" is AFAICS largely irrelevant.
> But I think I can see what you are after, I you have an "optimal"
> compiler every computer program that are functionally equivivalent
> will be reduced to the same binary form. However that doesn't rob
> the source code from copyright, just the binary form.

Binaries should only be copyrightable in the sense that doing a verbatim
copy (e.g. copy file.exe newfile.exe) should be protected, but if the
compiler happens to generate an exact copy, then so be it.

> Anyway, regardless of whether optimal compilers possible,
> it still doesn't make copyright of computer programs meaningless,
> since you really want to be able to change the computer program
> and an optimal representation of it is not very easy to change. :-)
> So the creative expression of the source code is really useful
> and thus promotes progress, so it really should be and indeed
> is protectable.

Yes, source code should in fact be copyrightable.  It is a human work just
like sheet music or a magazine article or book, etc.  Binaries are more
questionable, but see above.


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