Software patents and copyrights

Karsten M. Self kmself at
Fri Nov 9 09:52:31 UTC 2001

on Fri, Nov 09, 2001 at 10:17:34AM +0100, Steve Lhomme (steve.lhomme at wrote:
> Here is another interesting article about the history of software
> patents.  There is also some examples of what can't be copyrighted. An
> MSDOS batch file cannot be copyrighted for example !

I'm unimpressed and unpersuaded.

Greg Aharonian has been floating this around a few lists recently.  It's
an interesting compendium of some relevant case law and other citations.
Greg wants to make the case that computer software should not be
copyrighted, and that it should instead be patented.  He follows
somewhat Pam Samuelson in this regard, though her level of scholarship
is far higher.

The conclusions Greg draws may be of some interest.  They're not very
well accepted by the mainstream.  His commentary is brief to the point
of obscurity (fewer cases with more notes would be preferable), and his
editorial slant is broadly present.

His presentation is partial, and in cases misleading.  E.g., In SAS v.
S&H Systems, he neglects to mention that there were several instances of
direct quotation of nonfunctional SAS code by S&H.  The intermediate
copy S&H produced in the process of reverse engineering the program was
held to be infringing, though it likely would not be by current

There are also some blatant omissions from the record.  In particular,
Sega v. Accolade, Atari v. Nintendo, and Sony v. Connectix, all of which
establish the clear separation of coverage for functional and expressive
aspects of copyright in software.

Examine, but critically.

Karsten M. Self <kmself at>
 What part of "Gestalt" don't you understand?             Home of the brave                   Land of the free
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