back to article US Supreme Court Justices hear arguments in game-changing software IP case

The US Supreme Court is hearing arguments today in a case that could help to set a new standard for when software is eligible for patent protection. The nine judges are due to hear an hour's oral discussion on the Alice Corp v CLS Bank case, a patent lawsuit over financial software whose decision could come to affect businesses …

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Computer software should be covered by copyright, not patents.

If I write a program, and you copy the source, that's a copyright violation. If I write a program and you write a similar program independently, that's progress.

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Similar programs

But how do you decide how close to your code the opposition can be before it breaks your copyright?

This has been a dilema that I have been trying to get to grips with for sometime.

Until I do, I am very reluctant to release any of my software under a GPL License.

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Re: Similar programs and Copyright

Surely this is not as complex and intractable as it appears at first blush?

If it does precisely the same thing in precisely the same way there is a prima facie issue of copying. Examination of the code would then allow a determination as to facts. The biggest problem is not dealing with copying as such, but in being to obtain restitution for a copy that has taken place.

Is there any reason why someone would copy the code except as a full on pirate copy?

If I had to write the whole thing from scratch to even emulate the look and feel, why would I set out to copy the code line by line?

First I would have to get the detailed code and then hope it was written in the same style I used.

Once, I rewrote some computer based training programs. It was very clear that they had been written by several different people as you could soon tell which ones were written by which person by examining their code, (I had full source but no high level code writing access. I had to work in assembler at machine code level direct into memory.) I incorporated some of their previous code adding my updates. It ran on their specific hardware which was modified for our specific application, so hardly a mass resale opportunity.)

The issue that most now face is that of someone deciding to develop a computer based way of doing a mechanical task, e.g. and only as an example fuel injection on combustion engines. Its been done many ways over the years, (I was interested in one idea back in the 1960's.)

Had the first entrant to that market patented the idea of replacing mechanical logic with software logic the world be in a sad place by now. Just look about at the systems now deployed in their thousands, some more or less reliable than others but most very different from each other.

At one time Lotus 123 ruled the spreadsheet world, but now who remember the name? Had the idea of computerised spreadsheets been patented where would we be now? I say copyright the look and feel but as you stray into processes, the world becomes far more dodgy.

I still blame apple for introducing downgrades to mobile phones that replaced functions with useless dross - now they try to block anyone making a phone using the USPTO (UnSuitable Patent Office?) as their backer.

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Re: Similar programs

"Until I do, I am very reluctant to release any of my software under a GPL License."

<IANAL>The degree of similarity would be a matter of fact for the court to rule on. So if you somehow stumbled onto a licence violation, and were in a position to enforce it, then it would come down to the relative merits of the lawyers and the expert witnesses they (or the court) hired.

Or am I reading it wrong, and you've copied other people's code and want to know how much you have to change it before you can release it? If yes, then in principle no amount of changing will be sufficient, since it's conceptually a derivative work. In practice, if you can argue with a straight face that it's independently derived code, then you're safe.</IANAL>

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Re: Steve

It's maths. If it's beyond that or in addition to it, then you've added something of value that may be protected/protectable.

If not, do we really need to wall off certain access to mathematical equations?

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Re: Similar programs and Copyright

"If it does precisely the same thing in precisely the same way there is a prima facie issue of copying."

Or it is a pretty obvious idea with one particular expression that would be considered idiomatic by a large number of experienced programmers. I reckon quite a *lot* of things fall into that category, particularly if you spend time refining the spec so that it is mathematically minimal and then spend time refining your implementation to match, and then feed it to one of the fairly few compilers in widespread use, only for its optimiser to eliminate (in its own code generation style) the remaining differences between your code and the other guy's.

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Holmes

Re: Similar programs and Copyright

"If it does precisely the same thing in precisely the same way there is a prima facie issue of copying"

Unfortunately it is nowhere near as simple as this. There are a lot of database packages out there that understand SQL. In fact, they are proud of the fact that they produce the exact same results as each of the other packages when given the same query. But under the hood, they each write their own interpreters and search/storage engines. So producing the same results is not prima facie evidence of copying.

Compare this with Apple (tm), who have just patented the action of sliding your finger along the screen to unlock it. They are suing their pet hate (Samsung) again, citing this patent among others. And yet, if I turn my scanner over, what do I find, but a slider which will unlock it - a clear instance of prior art.

It is for reasons like this that I think that no software should be capable of being awarded a patent.

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A thought experiment

Suppose I have an algorithm. Instead of coding up that algorithm in C or JavaScript or some other traditional language, I code it up in Verilog. Verilog is Turing-complete, so I can use it to code up any algorithm. I can then take that Verilog program and run it on a computer. I can also take the program and build an FPGA netlist from it, or (if I have more money than sense) send it to a fab and have them stamp out some chips that implement it. Is this software or hardware? Is it both? Is it patentable?

The line between "software" and "hardware" is becoming blurrier every day, so this sort of thing could become quite hairy.

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Stop

Re: A thought experiment

Your thought experiment terminates after parsing the first sentence.

Suppose I have an algorithm.

Algorithms are mathematics, and ergo are not patentable: this is well-established in both the UK and US courts. To extend your experiment, suppose I have an algorithm for fast factoring of huge prime numbers? Such a thing would be hugely valuable. Could I patent it? No, I could not. If I made some silicon which implemented the algorithm, then the exact form of the carefully arranged sand would be protectable, but the algorithm wouldn't. Somebody could extract the algorithm, and implement it again in whatever way they liked, because it's just mathematics: pure ideas are not patentable.

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Re: Similar programs

Steve Davies wrote:

Until I do, I am very reluctant to release any of my software under a GPL License

I'm not sure what your concerns are. If we are talking about software that you wrote, then the GPL is the licence you might choose if (a) you want people to have the freedom to modify, change, and improve your code and (b) you want to ensure that those improvements are similarly free (as in freedom), i.e. that nobody can take your work and make it proprietary.

Many people seem to think that releasing under the GPL is equivalent to putting something in the public domain, and that's just SO wrong. You retain the copyright to your GPLed code, and license compliance is enforced by the automatic removal of the copyright permissions if someone is foolish or ignorant enough to transgress.

On the other hand, if you do not want to GPL your code, in order to keep it proprietary, then please don't. Or if you want it to be freely available, but without the protection at (b) above, you might consider a BSD licence?

None of the above is legal advice, b.t.w., for the good and sufficient reason that I'm Not A Lawyer!

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Re: A thought experiment

Fair enough. But the "exact form of the carefully arranged sand" is actually protected by copyright (technically "mask work rights", which is almost but not quite the same as copyright - shorter terms, for one thing.) A patent, should we deem the Verilog-program-expressed-as-sand to be patentable, would also protect similar arrangements of sand that do the same thing. So it's still hairy.

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All software is math

Therefore it is not eligible for patent protection.

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Re: All software is math

Deep down, everything can be seen as math.

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Coat

Re: All software is math

"Deep down, everything can be seen as math."

Is this another one of those my mom jokes?

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Re: All software is math

"seen as math" is not the same as "is math"

Abstract ideas are not patentable... and mathematics is nothing but abstract.

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How's this?

You should be able to write a murder mystery even though the genre is chock full of examples. You should not be able to re-release Agatha Christie's Marple stories with the name changed to Mabel.

Same with code.

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Re: How's this?

"You should not be able to re-release Agatha Christie's Marple stories with the name changed to Mabel."

I agree with this basic sentiment but NOT with this particular example. Agatha Christie's novels were mostly written in the 30s and 40s. I think it's a big mistake to have 75-year copyrights especially when copyrights were a LOT less at the time of publishing and then retroactively extended backwards.

Really Agatha Christie's novels should be in the public domain and freely accessible as an e-book and as a physical book at no more than the cost of printing/distribution.

Of course anyone trying to re-release the novels as their own work with Marple changed to Mabel would be both a fool and a prat, but NOT a criminal.

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seems to me that a simple "show your work" like on exams would settle cases like this. nobody sits down and writes a piece of code in one go, there are always iterations which get saved. there are always dead ends, oopsies, and examples of "oh shit, i've got to restructure everything now because . . . "

an "expert" hired by the court should be able to tell from the development evidence presented by both sides if it is original work or a copy. if all you can show is the binary and a couple of notes on napkins then you lose.

[also too: not patents, copyrights.]

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@ willi0000000

I think "substantial copying" is indeed established by the evidence of experts, though in the US I believe that experts are hired by the opponent parties rather than by the courts. It is a defence against the charge of copying, though, if it can also be established that the code in question is the only sensible way to write something for interoperability, hence SCO's claim of copyright infringement relating to errno.h failed.

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I think ...

Software Patents are the Mad Cow Disease of shitty Operating Systems.

They eat each other too loudly.

If we made Legal Ethics crunchier the noise might bother SCOTUS into doing something.

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