Software patents, which are by the thousands annually in the United States, continue to be the subject of heated disputes in Europe. The nations of Europe currently don’t issue patents on software, but they face continued pressure to follow the U.S. model and permit them.
In November, Linus Torvalds added his name to a letter addressed to the European Union Competitiveness Council, which is currently working on a “software patent directive.” Torvalds, along with MySQL founder Monty Widenius and PHP creator Rasmus Lerdorf, argue in their letter that software patents are unwise and will burden economic opportunities in Europe. As rationales, the three cite not only the likelihood of software patents stifling innovation in general, but also the prohibitive cost of obtaining the protection offered by a software patent. According to their figures, prosecuting a patent costs 30,000 to 50,000 Euros (that’s about$ 40,000 to$ 66,000 at the current exchange rate), far too much money for most individuals.
U.S. attorneys typically quote a figure of about$ 20,000 (and two to four years) to obtain a software patent. But it’s also important to remember that, despite treaties that make the process more manageable, a patent must be obtained in each and every country where the inventor wants protection. Patenting a device only in the U.S. leaves manufacturers and consumers in the rest of the world free to make and sell what you have invented.$ 20,000 is just the “entry” fee.
Compare this to the protection offered by copyright, which is an automatic right that accrues to every piece of software the moment it is created. Though certainly more narrow in scope than a patent, copyright protection extends to dozens of industrialized nations, requiring no additional action by the software author by virtue of comprehensive international copyright treaties.
All of this makes a recently filed federal lawsuit particularly interesting. Attorney and consultant Greg Aharonian has sued the U.S. Attorney General in the U.S. District Court, Northern District of California, claiming that software should not be copyrighted. Specifically, Mr. Aharonian asserts that applying copyright law to software is unconstitutional. Software, he says, should only be protected by patents. His arguments rest on the theory that copyright law as applied to software is too vague and violates the due process of law required by the Constitution because it doesn’t provide appropriate notice and boundaries for users. Effectively, he claims that one never knows when the copyright in a piece of software has been violated. (Mr. Aharonian’s views are more fully expressed at www.patenting-art.com/copyprob/softcopy.htm.)
I’ve disagreed with Mr. Aharonian previously, so it may be no surprise that I find his ideas on software copyrights untenable. But reviewing them does highlight the strength of current copyright law and some of the problems associated with both patents and copyrights as currently applied to software.
Patents provide more comprehensive protection than copyrights because they protect an idea, rather than a single expression of an idea. In other words, a patent may cover the entire scope of your creative effort, preventing someone from stealing your concept and simply using different words or tools to actualize your concept.
The breadth of a patent, however, could also be considered a source of difficulty in enforcing its protections. Because patent claims are phrased as broadly as possible, litigation over patent infringement leads to a lot of hairsplitting over the definitions of each word in a patent claim, as well as efforts to stretch the judicially created “doctrine of equivalents” to cover as much ground as possible. The result is that relying on a patent to protect your ideas can cost millions.
Protection under copyright law is not as broad, but is still powerful. While some of the leading copyright cases have struggled with where “idea” ends and “expression” begins, software copyright infringement is often a straightforward matter of comparing the code of one product to that of another.
Software piracy cases are an important example. The penalties for copyright infringement, as defined in Title 17, Section 504, include either actual damages (including lost profits of the copyright owner and extra profits earned by the infringer), or statutory damages that can reach$ 150,000 for each work infringed.
Mr.Aharonian’s 25-page complaint in federal court spends a lot of time discussing the vagueness of copyright as a reason for its being inapplicable to software. He states that until you’re sued, you don’t know what is acceptable behavior and what will subject you to penalties under copyright law.
By that logic, copyright would be too vague to apply to most forms of digital media. Courts are still struggling with the boundaries of copyright for forms of expression that were not envisioned in 1976, when the Copyright Act was last revised. Recent amendments addressing technologies like streaming music have revisited the most basic terms used in the Copyright Act, like “copy” and “distribution.” But vagueness is not a valid reason to throw out the whole system.
However, many users still wonder: What exactly can I do with a digital music file or a scanned image of a piece of sheet music or an e-book that I paid to download? None of these boundaries are particularly well-defined. Generally, however, you know when you’ve surely crossed the line and violated copyright, and when you’re undoubtedly in safe territory. The head-scratchers are the borderline cases where we’re not sure, and neither are the judges, because our premises are based on older technological models.
I’ve expressed my concerns over software patents in previous columns, but I can’t say that current copyright law is ideally suited to protecting software either. Copyright is absurdly long for software — 70 years after death for an individual author. Copyright also was not designed for protecting a “machine” that can be operated as a piece of software is operated. This was the difficult issue when Lotus sued Borland years ago over menu structures copied from the 1-2-3 spreadsheet.
Software patents are not going away, though one hopes their use will be reformed in the future. Software copyrights must remain the primary means of protecting the intellectual value contained in software. This may be especially true for free software, which avoids patents, but is also true for commercial software.
Courts continue to refine the best ways to apply existing laws to protect and police new technologies, but the Copyright Act is the right place to start for software.
Nicholas Wells is an attorney practicing technology and intellectual property law. This article provides general information and should not be considered legal advice. You can reach Nicholas at