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From: khill@home.csc.ti.com (Ken Hill - Patents)
Newsgroups: comp.sys.ibm.pc,comp.sys.mac,misc.legal
Subject: Re: What is the Copyright Issue?
Message-ID: <46187@ti-csl.CSNET>
Date: 7 Apr 88 15:03:55 GMT
References: <4611@june.cs.washington.edu>
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Reply-To: khill@home.UUCP (Ken Hill - Patents)
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In article <4611@june.cs.washington.edu> bnfb@uw-june.UUCP (Bjorn Freeman-Benson) writes:
.  * One can patent molecules (such as anti-freeze).  One does not
.    patent the process or the machines to make it.

Actually, one does patent the process or machine to make it.  This is
often the only patent you can get, because many ideas are really
better ways of making old stuff.

.The copyright/patent applies the useful product, not to some intermediate
.stage.  What the courts have failed to realize is that the useful product
.in software is how it works, NOT the source code that produced it.

Patents are intended to apply to "new and useful" things.
Copyrights, however, were never intended to apply to useful articles.
They were really directed to protecting the artistic expression of an
idea.  Thus, you copyright your paintings, literature, etc.  At least
in the US, copyrights have always been restricted to the expression
which is copyrighted, not the idea behind it.

This is what made the acceptance of software copyrights slow to begin
with.  Since software does something useful, especially object code,
copyright did not seem appropriate.  We now, however, have copyrights
applying to software, and there is still confusion as to exactly what
copyrights should protect.

I personally feel that the "look and feel" cases are bad, and hope
they turn out to be an aberration.  They appear to have come from the
old PACMAN case, and others of the same ilk.  A few years ago, when
software was considered not copyrightable, Atari sued someone for
copying its PACMAN arcade game.  Since they couldn't protect the
software, they based their claim on infringement of the copyright in
the artistic expression of the video screen.  (Theory: copying screens
is similar to copying photographs, movies, etc.)  This argument won,
and the court said that the infringing game had the same "look and
feel" as the original.  It is my opinion that this idea somehow got
warped into the look and feel test we appear to have today, which goes
beyond artistic expression to the functionality of the software.

So, to me, the correct way of looking at software copyrights is that
you can't copy code, and you can't copy screens that have artistic
originality, but functional aspects of any software should not be
protected.  Thus, windows, icons, etc. should be freely usable.  If I
want to use a trashcan icon, which is not very original, even a slight
difference from yours should not constitute copyright infringement.  A
bit-for-bit copy would tend to indicate copying of code (data is
included here, if you want to consider the bitmap such).  

The law doesn't currently seem to be interpreted this way, but it
should be. :-)  I think that, when interpreted by people who
understand the situation and aren't defending a particular position in
court, current copyright statutes and common law is mostly adequate
and actually does make sense.

There are no typos.  If you think you saw one, see an opthamolo... optaha...
ophthamal... eye doctor.
Ken Hill
{convex!smu, texsun,im4u,seismo!ut-sally!im4u}!ti-csl!khill