Copy-Back License draft for discussion

Lawrence Rosen lrosen at
Tue Apr 26 06:04:43 UTC 2005

> The statutes (102b) do say that
> processes and methods (like Java methods) are uncopyrightable
> "regardless of form".  

No, not "like Java methods" but instead "like patent methods" and "like
patent processes." Section 102(b) doesn't mean Java methods aren't
copyrightable. It only means methods and processes--as those terms of art
are used in patent law to describe certain intangible products of the human
intellect--aren't copyrightable regardless of the form in which they are

Copyright doesn't prevent people from *doing* or *learning from* what the
copyrighted work describes. 

That's why some proprietary folks try to lure you into accepting the terms
of a contract when they want to prevent reverse engineering or certain kinds
of uses. A contract can restrict what the copyright law doesn't--the copying
of "any idea, procedure, process, system, method of operation, concept,
principle, or discovery." But even in the absence of a contract, that
doesn't mean you can copy the source code. Not even a Java method.

/Larry Rosen

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices ( 
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  ●  fax: 707-485-1243
Author of “Open Source Licensing: Software Freedom and 
   Intellectual Property Law” (Prentice Hall 2004) 
   [Available also at] 

> -----Original Message-----
> From: Gregory Aharonian [mailto:srctran at]
> Sent: Monday, April 25, 2005 10:30 PM
> To: Bruce Perens; cody koeninger
> Cc: license-discuss at
> Subject: Re: Copy-Back License draft for discussion
> >International agreements such as TRIPS, to which the U.S. is a party,
> >require software to be protected as a literary work.
> The TRIPS and WIPO Copyright Treaty rest on Berne, which is one of a
> variety of international IP treaties that are not self-executing in the
> U.S. - Congress has to explicitly add such language to U.S. statutes.
> Congress has never added "computer programs are literary" to the statutes,
> despite being required to do so by TRIPS.
> >The copyright title doesnt specify which category of subject matter
> > software falls into.
> As the bible of copyright, Nimmer, says, software copyright is "tacitly
> assumed" to be in the statutes.  The statutes (102b) do say that
> processes and methods (like Java methods) are uncopyrightable
> "regardless of form".  It seems to me that an actual statute trumps a
> tacit assumption.
> Greg Aharonian
> Internet Patent News Service

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