From: kooros@refuge.Colorado.EDU (Paul T. Kooros)
Subject: Copyright issues in this lawsuit.
Summary: Copyright law only protects form of expression, not ideas within.
Organization: University of Colorado, Boulder
Date: Thu, 13 Aug 1992 23:46:59 GMT

friends,

    From reading the 2nd complaint (ftp.uu.net:vendor/bsdi/usl/920724.complaint
), one of USL's disturbing claims seems to be:
	Since BSD is functionally similar to UNIX(tm), it is USL's property.

    One of the important concepts of this lawsuit involves the application
of an arcane copyright law to software -- a law which was written to apply
to works of english prose and poetry.  Judges and jurors, most of whom
have had no experience programming, have had difficulty in this application.
Typically, their approach has been to draw analogy between book and program.
Evidence of this can be seen in the "Lotus Development Corp. vs. Paperback
Software" case, where Lotus sued Paperback for selling a program competing
with their popular 123 program.  The judge concluded that since the function
of the program was "substantially similar" this was like the "theme" of a
book being the same, and therefore constituted copyright infringment, even
though the actual program was independently written, and not copied.
I believe that the Lotus suit must have been poorly defended (and should have
never succeeded).  To support this, the following quotation from the
"copyright law" (17 USC 102 = "Title 17, United States Code, section 102)):
		"In no case does copyright protection for
		an original work of authorship extend to
		any idea, procedure, process, system,
		method of operation, concept, principle,
		or discovery, regardless of the form in
		which it is described, explained, illustrated
		or embodied in such work."

    I propose that the following analogy replace the "book" analogy:  Since
programs are sequences of instructions, they bear a direct resemblance to
COOKBOOKS.  It should be possible to write (and copyright) a cookbook with an
apple pie recipie, and not infringe on another cookbook with an apple pie
recipie as long as the recipies are different.

    To complicate this matter, there should probably be some copyright
protection extended to a program's effects (when it is run).  For example,
a TeX program's effect is a printed page, with information and ideas contained
therein.  It remains to be seen what reasonable metrics and criteria should
be used to determine infringement of a program's effects.  In general, I
agree with the League for Programming Freedom's argument against patented
user interfaces, but perhaps a milder form of copyright protection should
exist here(?).

    I suspect that the propper way to implement such a change is not to hope
for judicial wisdom in technical areas in which the judiciary is incompetent,
but the modification and updating of the copyright law by the congress.  The
congress is perhaps equally incompetent, but is succeptable to public pressure
while the judiciary is not.  This route does require some initiative (and a
legal department), however.  Perhaps the League for Programming Freedom or
other such umbrella organization could help out with this?
Along these same lines, it has come to my attention that *anyone* can file
an amicus curae (friend of the court) brief in support of the defendants.

    To summarize, I think programs' originality should be judged largely on
content, and not on function.  Thus assuming that Berkekley has not indeed
copied AT&T code, as a copyright suit, USL's suit is without merit.

			for what its worth,  :-)
				Paul. (kooros@boulder.colorado.edu)

P.S.: Title 17 of the U.S. Code is interesting reading material.  Its just one
volume, and is available in most libraries.
Newsgroups: alt.suit.att-bsdi