An intellectual property consultant and longtime critic of the U.S. patent system has filed a federal lawsuit to get computer software out from under copyright protections designed mostly for music, literature, and other creative works.
“The laws are in a lot of flux, a lot of controversy. It’s a big mess,” Gregory Aharonian told AVNOnline.com. “Part of the mess is the laws themselves are very messy and the results affect everyone. It’s time Congress cleaned up the language of the laws. There’s actually no specific language that says software is specifically copyrighted. Most find that surprising, but Congress has never actually added the language.”
He said he wants that and more clarified by Congress or in the courts, given that software makers now use both patent and copyright law to protect what they make.
“All this dates back to the mid-1970s,” Aharonian said. “We’re talking about stuff 30 years old. In the 1970s, Congress was looking at all this. In one of their House reports, they said that computer programs are copyrightable. In 1980, they added the definition of a computer program to the law. Computer programs are defined in the law, under copyright law, but they’re just defined. There’s no other real language of law there.
“And in the 1990s, when they signed the TRIPPS treaty, one of the clauses is all countries have to put the treaty law into national laws, which we mostly did,” he continued, referring to the 1990s industrial property treaty composed by the World Trade Organization to which the United States is a signatory. “There’s another TRIPPS clause saying computer programs are literary and we’re supposed to put that into the laws.”
Aharonian said his lawsuit also addresses the copyright codes where software is concerned. “Copyright code says software expressions are copyrightable but not software ideas,” he said. “The words ‘idea’ and ‘expression’ are not defined in the law, and the courts have never been able to explain to the public what the words mean.” And nobody else knows, either, he said, until or unless they get it in front of a judge.
Aharonian is hardly without his critics. “It looks,” said Slashdot.org about his suit, “like this would hamstring licenses such as the GPL, which are often based on copyright privileges, while leaving OSS vulnerable to patent infringement.”
And Brandon Shalton of FightThePatent.com and Cydata, the latter aimed at helping Web sites isolate, capitalize, and expand on their traffic sources, told AVNOnline.com that Aharonian’s reputed ultimate aim of bringing software under its own patents is not necessarily a good thing, because technology evolves too swiftly to keep it from muddling and not clarifying intellectual property.
“I have the opposite view [to Aharonian],” Shalton said. “There should not be any software patents. The reason being, there’s a whole issue of what is novel and what is obvious.
“I think the issue of patent reform that needs to be done is [based on the fact that] technology evolves so quickly and so many people think similar things, it’s far more difficult to have something truly novel and unique,” Shalton continued. “A lot of patent reform is looking at areas like what is novel and what is not. That’s where I see things need to change as well as a special court that looks just at patent issues. These are not as drastic as what Greg is proposing with his changes.”
If Aharonian is successful with this litigation, there are those who fear consequences regarding a software application creator’s rights to protect himself against piracy. "If you eliminated the ability to sue somebody for copyright infringement, you would eviscerate our ability to go against pirates," Business Software Alliance counselor Emory Simon said in one published report. The BSA has estimated the U.S. software industry lost $6.5 billion to piracy in 2003.
The U.S. Copyright Office has held that copyright protection is imperative to protecting the software industry.
“Design patents and copyrights have a lot in common,” Aharonian said. “The whole point is nothing to do with economics but just to get the courts or Congress to clean up the language. If Congress doesn’t want to do it, it’s up to the courts, that’s where most of this has gone on for the last 30 years. I can’t believe the software industry hasn’t demanded Congress clean this up.”
Patents generally expire after 20 years, but copyrights expire 70 years after the death of an artist, writer, filmmaker, or other creator and after 95 years if the copyright is owned by a corporation.
