Path: utzoo!telly!attcan!uunet!mcvax!ukc!dcl-cs!aber-cs!pcg From: pcg@aber-cs.UUCP (Piercarlo Grandi) Newsgroups: gnu.gcc Subject: Re: GNU's not GNU... Summary: Patent, Copyright, TradeMark Message-ID: <819@aber-cs.UUCP> Date: 14 Apr 89 20:19:07 GMT Reply-To: pcg@cs.aber.ac.uk (Piercarlo Grandi) Distribution: eunet,world Organization: Dept of CS, UCW Aberystwyth (Disclaimer: my statements are purely personal) Lines: 113 In article <28723@apple.Apple.COM> desnoyer@Apple.COM (Peter Desnoyers) writes: For obvious reasons, I'm not going to comment on the Apple lawsuit. However, I will point out that the tack above has been tried by others (I think Adobe and PostScript, for a recent example) and there is precedent that a "computer language", whatever that is, is not copyrightable. Back to the law book; let me summarize in a crude way the three major formal ways of protect intellectual property, to see why copyrighting of look-and-feel is very bad, and very disingenous: Patent Applies-to: ORIGINAL and NON OBVIOUS (to a PRACTITIONER) INVENTIONS of INDUSTRIAL devices and processes Duration: 17 years from application Requires: full DISCLOSURE of the details Grants: exclusive rights to EXPLOIT Comments: Designed to protect for a short (17 years used be very short) period of time an investement in manufacturing research. Note that if somebody reinvents it independently, the prior patent holds. A VERY strong protection, even against subsequent invention. Also, the requirement for invention means that discoveries cannot be patented; e.g. mathematics, physics, etc... The application of a discovery may be a process though, and therefore patentable. Other elements that make it very strong are that it is very expensive to sue over a patent claim, either to defend or attack it, and for big corporations this means a lot (no smaller competitor will challenge even the most ridiculous claim, or defend even the strongest one). Copyright Applies-to: the EXPRESSION of a NON TRIVIAL idea. Duration: lifetime of author, and 50 years after that Requires: (used to, actually) a NOTICE and PUBLICATION Grants: esclusive rights to REPRODUCE, in a variety of ways Comments: Designed to protect for a long (probably now too long, it used to be a fixed number of years from publication) period the interests of an individual author and allow authors to live of the fruits of their work. It does not protect in any way the contents, only the expression and derivatives. The fact that now publication is no longer required is very bizarre, and untraditional. It is a very strong protection, because it lasts very long, it costs nothing (well...), and covers all possible types of reproduction, includiding derivatives (of the expression, not of the idea). Scope is not wide, it definitely applies only to expressions of ideas. Fonts for example cannot be copyrighted, because a glyph does not express an idea. TradeMark Applies-to: any DISTINCTIVE and IDENTIFYING ASPECT of a good/service Duration: as long as it used, and then a short period after that Requires: a NOTICE and optionally a REGISTRATION Grants: exclusive rights to CHARACTERIZE good/service Comments: Designed to protect an investment in marketing. Weakest of all protections, as it lapses if not used; also widest, as anything, as long as suitable, can be protected, even common names, designs, phrases, etc... It does protect against imitations, e.g. the use of something that is not sufficiently distinctive, and mistaken identifications by the public. It is also quite cheap to obtain and defend. Can be used to protect otherwise unprotectable items, which you still think have cost you an investment, e.g. the name of a font, or even the yellow border of Nat.Geo. When a trademark is no longer IN FACT distinctive and identifying of a specific product or service, it can no longer be used as such; this is different and weaker than the others. I see things in this way (which I reckon to be very simplistic but accurate), and I agree with RMS that such protections are accorded to stimulate investment in industrial research, authorship, and marketing, not to suppress them in favour of the corporations with big lawyer teams and pursuing a strategy of exhaustion (with smaller rivals) or delay (with big ones). All this said, I reckon that in no way copyright law, even with the recent wanton extensions to it, can be used to protect an investment in look and feel. Simply, look and feel is not a precisely defined expression of an idea. If I build a windowing interface similar to the Mac's one, without copying literally parts of the Mac's, I am creating an independent, similar work, not a derivative. It is like reusing ideas in the plot of a film, not actual pieces of the film. If look and feel were indeed deemed to have been intended to be copyrightable, which in my opinion requires a colossal extension of what is considered to be copyrightable, than this should be rectified, because copyright is not the right instrument with which protect look and feel, because its scope would become too wide, and it lasts too long. On the other hand IF look and feel should be protectable, clearly trade mark protection is the way to do it. It is appropriate, not too wide, and has been used historically for other look and feel issues, such as the coke bottle or the NatGeo yellow border. What is terrible about Apple's action is the attempt to obtain the strong and virtually eternal protection of copyright for a whole class of interfaces, not for a specific expression and its derivatives; in other words Apple is trying to patent by stealth an idea, and to get away with even greater protection than patenting allows. This is considerably complicated by the details of the licensing agreements between Apple, HP and Microsoft. I don't know what possessed HP and Microsoft when they licensed Apple's windowing ideas, and why ever they did not insist that it licensing based on trade mark law. Actually, I can imagine why, but it was a very short sighted why, and subsequent events proved it. -- Piercarlo "Peter" Grandi | ARPA: pcg%cs.aber.ac.uk@nss.cs.ucl.ac.uk Dept of CS, UCW Aberystwyth | UUCP: ...!mcvax!ukc!aber-cs!pcg Penglais, Aberystwyth SY23 3BZ, UK | INET: pcg@cs.aber.ac.uk