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Copyrightable functions and patentable speech
Burk D. Communications of the ACM44 (2):69-75,2001.Type:Article
Date Reviewed: Dec 1 2001

For over 40 years, many patent and copyright lawyers and judges have been like the classic “blind men touching the elephant” example, in this case, a software elephant. Is software patentable, is it copyrightable, is it functional, is it expressive, is it a process, is it data? At first, software was not thought to be patentable; now it is. Once software was thought to be best protected by copyright; now software copyrights are viewed mostly as useless.

When mathematicians and computer scientists complain about this intellectual wandering, the lawyers typically respond with “you don't know enough about the law.” It is time for the mathematicians and computer scientists to yell back to the lawyers: “you don't know enough about mathematics and computer science.”

In yet another legal wandering, the author, a professor of law, argues that software is really neither expressive nor functional, and therefore really not patentable or copyrightable, but rather deserving of some sui generis form of intellectual property protection. Part of this mess is due to the Supreme Court, which ruled in 1972 that software is too abstract to be patentable (Gottshalk), only to rule in 1981 that with an applied use it was patentable (Benson), a ruling reinforced over the next 20 years by lower courts. In this confusion, copyright was the alternative (partly thanks to Congress botching the handling of yet another technology problem). The US Patent Office issues more than 20,000 software patents a year (quality being an issue for another article).

To non-lawyers, the question is “When wasn't software functional?” Thanks to the greats such as Turing, Church, and Post (none of whom are mentioned by the author), there has never been any theoretical difference between data and software (for example, Lisp) and software and hardware (for example, a Lisp machine). Increasingly, much hardware design is software manipulation (using languages like VHDL or Verilog) in hardware/software co-design environments where the designer designs systems, and lets the computer partition the system into hardware and software from component libraries in multiple ways. Why is the software generated in this way any less patentable than the hardware - now, in the past or in the future? Indeed, in light of field programmable gate arrays, the boundary between hardware and software is pretty much nonexistent. A 1989 paper by two patent lawyers, “Patentable computer program features as uncopyrightable subject matter” in the AIPLA Quarterly Journal offers a much better legal analysis of the nature of software.

Yet none of these technology considerations, or the criticisms of other lawyers about software’s copyrightability, is reflected in the author's paper. As such, his conclusion that “Software does not fit comfortably into the traditional legal categories for functional works or expressive works” ignores software’s inherent functionality, disclosed over the last 40 years in ACM and IEEE publications. The problem is that traditional legal categories are ill-defined; by properly defining the legal categories, the patentability of software logically follows. To suggest that “software be placed in its own unique category” is wrong, especially in light of the Semiconductor Chip Protection Act, a similar, yet failed, attempt to create a unique category of protection.

This article could have been easily shortened as follows: “For decades, courts and lawyers and politicians, in not fully understanding computer science, have wrongly and awkwardly tried to apply copyright law to software. They should stop and let the function-claiming patent system be used for protecting the functionality of all aspects of software.” The rest of this paper is an interesting history lesson, but is better suited to another forum.

Reviewer:  G. Aharonian Review #: CR125567 (0112-0468)
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