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

Patrik Stridvall ps at leissner.se
Fri Feb 16 06:53:36 CST 2001

> > 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.

Note quite, patents do not protect functiality, they protect
a specific way to achieve a certain functionality.
For example, you could, providing software patents are valid,
patent a specific algoritm that sorts list, but you can't 
patent all algoritms that have the same functionallity,
is this cases that sorts list.

Patents are for promoting progress by finding new and better
way of achieving some specific functionality.

The functionallity (end result) is itself it an idea and not 
> > 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,

Careful, we definitely don't want copyright law to mean that.
There have been some strange cases involving whether the
representation of the program in memory is a copy. While
running an application obviously falls under fair use,
such a view might be unfortunate since it like the DMCA
will lead to logical contradictions which will enable
scrupelus persons to use the confusion in legal arguments.

IMHO the only sane definition of copy in the meaning of 
copyright is something is a copy (or a potential copy) if it 
is made with the intent to distribute. With potential copy
I mean for example offering a protected work for download on a 
website or on Napster or where ever. All other defintion
will lead to logical contradictions AFAICS.

For example, if I look at protected work, have a copy been made
in my eyes? If I have a camera attached to say my glasses that
broadcast everything I see on a website will I be a copyright
infringer if I look at a protected work. Without having intent
as condition you can nail anybody for copyright infringement.

> but if the
> compiler happens to generate an exact copy, then so be it.

Yes, but two works that are the same or similar by coincidence
have never been considered copyright infringment.

What I meant is that if the representation is optimal it
will be purely functional and thus not protectable at
all since copyright doesn't protected that.

However since optimal compilers doesn't exist, this
distinction is rather meaningless, the binary will
always retain some of protected creative expression
and thus be protectable as a whole.

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