[CLUE-Talk] Legal breaking of the MS monopoly

[Matthew Porter]

"Timothy C. Klein" <teece at silverklein.net> wrote:

> One thing that really bothers my about software copyright is this.  The
> original intent of copyright was to give the author of a work a
> financial incentive, and state-sanctioned monoply, to produce copies of
> his or her work.  In exchange for this privelage, all ideas contained in
> teh work are now in the publice domain.  Only verbatim copies are
> protected.  Thus, Tolkien, for example, owns the right to reproduce his
> works, but he does not own the ideas of elves, dwarves, and hobbits.  I
> could even completely retell the exact same story, in my own words, and
> be legal.  This is even more important for a scientific publication.

This isn't quite accurate as a description of copyright law.  You might be
confusing copyright law with an aspect of patent law.  The ideas in a
copyrighted work are not placed in the public domain "in exchange for" the
privilege of copyright protection.  Rather, copyright protection simply
doesn't extend to ideas, so ideas are *always* in the public domain as far
as copyright is concerned.   Copyright only covers specific expression.  

Now, one tough question that arises is, where do expressions end and ideas
begin? Your example of re-telling THE LORD OF THE RINGS in your own words
exists in a grey area.  Last year a pitched legal battle was fought over
the novel THE WIND DONE GONE, which re-tells the story in GONE WITH THE
WIND from the point of view of a Tara slave.  (See
http://www.houghtonmifflinbooks.com/features/randall_url/ -- the 11th
circuit eventually lifted its ban on publication of TWDG, but it was quite
a fight.)

Patent law, on the other hand, is designed with the kind of quid-pro-quo
you describe.  In exchange for filing public documents which describe your
invention in enough detail so that someone else could use it, you get a
time-limited monopoly on the use of that invention.

> 
> Now we have copyright as applied to software.  The traditional, closed,
> proprietary software model publishes the binary, machine-readable code.
> The actual text used to produce this code is hidden.  In essence, the
> software vendor is copyrighting a *service*.  The original source code,
> the stuff that contains the vital *ideas* behind the software, is a
> closely guarded secret.  To me, this is a perversion of copyright.  The
> software vendor gets the goverment sanctioned monopoly, but the public
> does not get the ideas contained therein.  The public is getting
> short-changed.  Copyright law has shifted so far in favor of the
> copyright holder, it is frightening to me.
> 

I'd say that the source code is a different expression, so the author can
decide whether or not to release it.  (Just as, say, a filmmaker shouldn't
be forced to publish his shooting script in order to get copyright
protection for his movie -- an imperfect analogy I know, but...)

The inability to copyright ideas doesn't mean that source code can't be
kept private.  It *does* mean, for example, that the first person to write
a spreadsheet program can't use copyright to prevent someone else from
writing another spreadsheet program from scratch.

My main beef with copyright law isn't over what is or is not disclosed,
but is over how the time limits and "work for hire" rules are constantly
re-worked to make a mockery of the creator-oriented and "limited time"
aspects of coyright law built into the Constitution.


 --Matt.

----------
Matthew Porter
Golden, Colorado

mfporte at c-creature.com

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