Copy-Back License draft for discussion

Gregory Aharonian srctran at
Wed Apr 27 00:30:14 UTC 2005

Larry rosen responds to:
>> 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

Incorrect.  First, there is nowhere in the copyright statutes where the
law states that 17 U.S.C. "methods" and "copyrights" are defined in
terms of patent law.  One of the great vaguenesses of copyright law is
that it rests on so many undefined terms that have to be defined in an
ad hoc and inconsistent way by untrained judges during a trial. Second,
for the most part (if you read it), copyright caselaw ignores the
existence of the patent system - software copyright caselaw rarely if
ever mentions patent caselaw (partly because the judges realize that
ideas like Java methods probably are 17 USC 102b methods).  Third, you
can't patent intangible methods and processes (read State Street) - any
software appearing in the spec or the claims of a patent is tangible,
and therefore completely overlapping with 17 USC 102b.

Uncommon, but legitimate, is claiming source code and its equivalents
in patent claims, making what appears in a patent claim (a quasi-statute
outranking caselaw) indistinguishable from what is litigated in a 
copyright lawsuit.

>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.

Incorrect.  If the portion of source code I am copying merges with
whatever a judge decides is the relevant "idea", then caselaw says I
can freely copy the source code.  And much more copying is allowed
under copyright caselaw.

More importantly, software copyright statutes have way too many undefined
terms.  Look at a source code, and you have no idea what a judge at some
point in the future is going to label "idea" and "expression" - even
worse, you don't know how an appeals court judge with his ad hoc analysis
is going to overturn the ad hoc analysis of the district court judge
(look at the Lexmark hisory).

John Cowan scripsit:

>> 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.

>That would be a sound argument if there were any shred of evidence
>that "methods" in the Copyright Act meant what it means in Java and
>other OO languages.  Fortunately, there isn't.  It means "ways of
>doing things", that's all.

No, it doesn't mean "ways of doing things", i.e., your phrase has never
appeared in caselaw.  What the judges tend to do is associate software
"methods/processes" with the definition of computer program in copyright
law - a sequence of instructions that achieves a result on a computer -
and last I looked, Java code is a sequence of instructions that achieves
a result on a computer.

But the real crime is that such crucial words as "idea", "expression",
"method", "process" are no where defined in the copyright statutes,
and very inconsistently defined in caselaw, making the whole mess one
big vague arbitary mess.

codykoeninger at writes:

>Yes, I understand that such treaties are not self executing.  My point
>is that not only has the statute not settled the issue, international
>obligation suggest that it should be settled in favor of public
>performance and display rights for software.

Such suggestions mean little in US courts.  In a recent case, someone
tried to trademark his name (Rath), which is allowed by the Paris
Convention (which the US belongs to) but not by US trademark statutes.
The PTO rejected the application, and the appeals court upheld the
rejection, ruling that Paris is not self-executing in the U.S.  By
statute or caselaw, neither Paris nor Berne nor TRIPS are self-executing.

Besides, all of these international treaties dealing with software copyright
repeat the multiple-undefined-term contradiction of 17 U.S.C 102a/b,
making them as intentless as the US statutes.

Greg Aharonian

More information about the License-discuss mailing list