The Skin of a Living Thought

I know that we’re all glad that that’s settled.

I hope that this patent addresses the obvious safety concerns

(Source: contextfreepatentart)

Decent story about the case from Bloomberg.

However, you can read the actual opinion here.
How? The opinion is quite short and easy to read.  I’m not a lawyer, and I thought this one was straightforward.

Paragraphs 1 & 2 review why the court is handling the case.  Skip ‘em - they’re handling it because they were asked to.

Paragraphs 3-22 contain excerpts from several different EU copyright laws, most importantly Directive 91/250/EEC (Legal Protection of Computer Programs) and 2001/29/EC (Copyright and related rights in the information society).  Come back to these paragraphs later, when the decision refers to them.  The Court chose its excerpts carefully.

Paragraphs 23-27 - Summary of the case.  SAS is a software company that sells data analysis software including an unusual programming language of its own design, as well as databases, graphing tools, and libraries of statistical functions.  SAS designed the language and wrote all of the accompanying software - there’s no open-source version, and the software is quite expensive.  World Programming, Ltd., programmed its own version of the SAS programming language and related tools.  SAS sued WPL for copyright infringement for

• copying the manuals and, in the process, copying SAS’s software,
• using the SAS Learning Edition for reverse engineering, which its license agreement apparently does not permit
• producing its own manuals, allegedly by copying the SAS manuals.

The suit’s focus on the manuals may seem puzzling- the manuals aren’t very useful without the software, and there are books about SAS programming that aren’t even very expensive.  However, if the case were solely about reverse engineering software, SAS would have had a lot more trouble phrasing its argument; we’ll see below that reverse engineering is pretty well protected.

28. How We Got Here - the suit was brought in the UK, and was heard by High Court of Justice, Chancery Division, which handles business law.  The judge in the trial referred the case to the EU Court in order to ask particular questions to clarify the EU law on copyright and reverse engineering in this case.

29-70 contain very careful answers to those questions.

The findings appear after 71, and are somewhat anticlimactic after 29.70.  Summarized:

1. Copyright protects the form of expression of a computer program;
   the programming language, the functionality, and its file formats are not part of a computer program’s form of expression;
   therefore, copyright does not protect them.
2. The law that protects computer programs specifically allows reverse engineering, as long as (basically) you don’t make illegal copies of the software to do so.  You can definitely run and operate the software in order to reverse engineer it, too.
3. Copying the manuals sounds like it might be copyright infringement, if the parts copied are the kind of text normally protected by copyright.  That would exclude mathematical formulas, for instance, but not source code itself.  The UK Court has to determine that outcome.

So the meat of the opinion is in how the Justices in the European Court of Justice approach the particular questions posed by the UK court. 

The opinion appears to be pretty carefully constructed to permit using reverse engineering to create a competitive product.
There are several citations from the Directive on Protection of Computer Programs (91/250) and the Directive on Harmonization (2001/29) that explicitly permit reverse engineering
for the purpose of interoperability only. 
91/250’s permission seems to be tied strongly to interoperability only:

2.       The provisions of paragraph 1 shall not permit the information obtained through its application:
(a)       to be used for goals other than to achieve the interoperability of the independently created computer program;
(b)       to be given to others, except when necessary for the interoperability of the independently created computer program; or
(c)       to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.

World Programming, Ltd were reverse engineering SAS in order to make a competing product, which might seem to fall under 91/250 (2) (c) here. However, the Court of Justice established that
•   [paragraph 42] The file formats of a computer program are not part of its expression,
•   [paragraph 39] The programming language offered by a computer program is not part of its expression,
•    [paragraph 38] and the user interface of a program is not part of its expression.

Therefore, reproducing the file formats, programming language, and the user interface isn’t making a computer program “substantially similar in expression.” 
You can therefore use reverse engineering to produce a computer program that essentially looks and operates identically to another, as long as you don’t “infringe the exclusive rights of the owner of the copyright in that program,” which I believe must therefore mean

a) actually copying the program itself or parts of it, or

b) copying the actual, original source code.

I think that this really is a total win for reverse engineers, at least as far as copyright goes. It might have been easy for the court in this case to let the “interoperability” restriction in Directive 91/250/EEC exclude WPL’s actions in reverse engineering.  To me, this reads as though the Court is strongly inclined not to let copyright protections for software stretch at all into the realm of software’s functionality.

The case is careful to say that it’s talking only about copyright’s protections, and not those of patent or trademark.  Note also that it seems that WPL could still wind up losing the the case, if the High Court finds that they reproduced the manuals in violation of SAS’s rights.

Also, this case turns on what copyright doesn’t cover.  Much what copyright doesn’t cover lies within the realm of patents. Since SAS is a substantial company with a long history, I would be surprised to discover that they had not sought and received patent protection for any of their technology.

I will be interested to see where this case goes in the future.

This Apple password recovery patent is brilliant.  The technical solution is clever, but what impresses me is the usage model, which matches many real world use cases perfectly.

One example is a student that takes her laptop computer to a university class, but leaves the docking station in her dorm room, or an executive takes his smartphone to a client meeting, but leaves the charging cable in his office. Another example is an employee that takes his portable media player to work, but leaves the power cord in a locker.

The day that this technology makes it to the market, people will start saying that it’s obvious, and that the patent shouldn’t have been allowed.  Many things are obvious once someone has done the hard work of inventing them.

via Patently Apple.

Even if it seems that way.  I was reading Nimmer over the holidays and stacked up a few posts for later.

Here’s the list of the kinds of works that the US Copyright Act enumerates as copyrightable.

1. Literary works
2. Musical works, including any accompanying words
3. Dramatic works, including any accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings
8. Architectural works

But that’s not the end of it.

The House Report explicitly states that these categories are “‘illustrative and not limitative,’ and … do not necessarily exhaust the scope of ‘original works of authorship’ that the bill is intended to protect.”

Is anything inherently uncopyrightable?

The House Committee Report… in explaining Section 102 … suggested … “typography; unfixed performances or broadcast emissions; blank forms and calculating devices; titles, slogans, and similar short expressions; certain three dimensional industrial designs; interior decoration; ideas, plans, and methods; systems and mathematical principles; formats and synopses of television series and the like; color schemes; news and factual information considered apart from its compilation or expression;” HR Rep No 2237, 89th Congress, 2d Sess. p. 44, n.1 (1966)

Think of two categories of candidates for inclusion in copyright: new modes of expression made possible by technology, and things that only over time have come to be perceived as worthy of protection.  Choreography was not protected under the 1909 act, and thus is viewed as a work of authorship only because “the coverage of the [1909] statute [is] broadened further by explicit recognition of all forms of choreography.”

-Nimmer, 2-29 2.03(A)

“The hallmark of a protected property interest is the right to exclude others.  That is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’”

College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.

Interesting.  That’s not a transitive relation - just because I have the right to exclude others, I don’t also have a property interest, do i? I can keep you from reading the copy of Zach Rawlins’ The Academy I have on the Kindle App on my iPad, but that doesn’t mean that I own it.  I have a contractual right to read that copy, but Amazon will retract that Kindle copy if I behave badly with it, or if Amazon later determines that they didn’t have the right to sell it to me, or if Amazon decided to get out of the ebook business.

Also important, of course, is that you can paint your property whatever color you want.

To the world:

Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private citizen.

Endorsed: The state.

Beckerman-Rodau, in Nimmer on Copyright

“Real people live in copyrightable structures, get married in copyrightable garments, and discuss their most intimate life experiences in copyrightable prose.

- Melville Nimmer

“[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the tie in which it is used.”

- Oliver Wendell Holmes