Wednesday, December 15, 2004

More on Aharonian...

Reuters and CNet have covered Greg Aharonian's lawsuit on the unconstitutionality of software copyright, but I know where we can get a copy of his complaint. More information on this lawsuit can be found here:

Now I understand why some of Aharonian's comments about "bad physics" in regards to software copyright case law seem so familiar to me... He's got a Master's Degree in Physics from Cornell and a B.S. in Physics and Computer science from Brandeis University. He's a Physicist (by training)!!! I can identify with that...

Aharonian mentioned something interesting, in correspondence, that he said wasn't covered in the Reuters article (my emphasis):
Finally, one part of my lawsuit not mentioned in the press is that nowhere in the copyright statutes (§ 17 U.S.C.) is software copyright actually authorized. Congress has never voted in a bill that was signed by the President to authorize exclusive rights in software. There is some vague legislative history, vague legislative intent, but no law. So whatever, the first step is to get Congress to pass such a law, which is required by treaty.

Indeed, as the great Nimmer on Copyright states, software copyright is "tacitly assumed" to be a law, which means it isn't.

I wasn't aware that there needed to be a bill passed to authorize software copyrights, but then again I am not a lawyer... I'm not expected to know these things.

One intellectual property lawyer I spoke with didn't think this would be a critical issue, however.
Dozens of courts have already ruled that software qualifies for copyright protection under the existing definitions in § 17 USC 102. There is no need to explicitly implement it under any treaty. As long as US copyright law protects software in practice, there is no need for Congress to pass an explicit law protecting it. Treaties can be abided by through practice and still comply.
As for myself, I'm not going to hold my breath waiting for software copyrights to be overturned on a legislative technicality, but I have a tremendous amount of sympathy for the other issues that Aharonian raises... If a simple misunderstanding of the meaning of "access" can result in rulings like Lexmark and Skylink, then just think of the mess we might have if terms like "idea" and "expression" are equally vague.