07.02.17

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Professor Pamela Samuelson Debunks the Concept of ‘IP’ by Separating Copyrights From Patents and Demonstrating That Copyrights Are Sufficient for Software

Posted in Intellectual Monopoly, Patents at 11:18 am by Dr. Roy Schestowitz

Various approaches for assessment of copyright infringement (in software) are outlined by an academic from Berkeley who specialises in copyrights

Pamela SamuelsonSummary: In a paper entitled “Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement” Samuelson (shown on the right) explains that working around copyright infringement isn’t as trivial as proponents of software patents want us to believe

IT IS often said here that software developers need not rely on any patents because copyrights already provide sufficient protection from gross plagiarism. The same is true for prose.

Pamela Samuelson, linking to her guest post from May, did some scholarly work on the subject. Pamela Samuelson was even cited by proponents of software patents, who added: “Rediscovered 1991 PTO/Copyright Office study concluded that #copyright & patent are mutually exclusive re software”

“It is often said here that software developers need not rely on any patents because copyrights already provide sufficient protection from gross plagiarism.”Yes, software is covered by copyrights but not by software patents in most of the world and after Alice (2014) it seems ever more evident that developers should focus on copyright assignment rather than pricey patent applications. It’s interesting (albeit not too surprising) that she chose Patently-O as her platform, preceded by “Professor Samuelson’s newest article Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement, is forthcoming in the Berkeley Technology Law Journal.”

Does this mean people should quit using buzzwords like “IP”? Wherein even trade secrets and trademarks are lumped into the same pile?

Some proponents of software patents have since deleted their reference to that, but Manny Schecter from IBM cited Samuelson and twisted what she showed by stating: “And yet some think (wrongly) that #copyright is a substitute for #patent protection…”

“Does this mean people should quit using buzzwords like “IP”?”They don’t say “substitute” and either way, this totally misses the point of what she argued. IBM, being a patent bully, can’t help lobbying everywhere in the world for software patents. Such IBM spin on an article, which — in our assessment — proves the very opposite, says a lot about IBM.

“German courts in the seventies said the same,” the FFII’s President told him. So there’s nothing unusual about what Samuelson has shown.

“This Article offers both praise and criticism of the approaches taken thus far to judging software copyright infringement, and it proposes an alternative unified test for infringement that is consistent with traditional principles of copyright law and that will promote healthy competition and ongoing innovation in the software industry.”
      –Pamela Samuelson
For those wishing to read the complete article, it is here (direct link to the 65-page PDF although directs may lead to static HTML). The abstract says: “Courts have struggled for decades to develop a test for judging infringement claims in software copyright cases that distinguishes between program expression that copyright law protects and program functionality for which copyright protection is unavailable. The case law thus far has adopted four main approaches to judging copyright infringement claims in software cases. One, now mostly discredited, test would treat all structure, sequence, and organization (SSO) of programs as protectable expression unless there is only one way to perform a program function. A second, now widely applied, three-step test calls for creation of a hierarchy of abstractions for an allegedly infringed program, filtration of unprotectable elements, and comparison of the protectable expression of the allegedly infringed program with the expression in the second program that is the basis of the infringement claim. A third approach has focused on whether the allegedly infringing elements are program processes or methods of operation that lie outside the scope of protection available from copyright law. A fourth approach has concentrated on whether the allegedly infringing elements of a program are instances in which ideas or functions have merged with program expression. This Article offers both praise and criticism of the approaches taken thus far to judging software copyright infringement, and it proposes an alternative unified test for infringement that is consistent with traditional principles of copyright law and that will promote healthy competition and ongoing innovation in the software industry.”

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