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| Authored by: Anonymous on Sunday, April 29 2012 @ 08:59 AM EDT |
It can be represented in UML, skeletal code, generated javadocs, or unit
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| Authored by: Anonymous on Sunday, April 29 2012 @ 11:30 AM EDT |
I don't happen to like or agree with Whelan v. Jaslow, but it hasn't been
overturned yet, AFAIK. I don't see Google arguing to overturn it here, either,
although I wish they would, and I may have missed where they are arguing to
overturn it. But, if they don't they are more or less stuck with it. What they
appear to me to be arguing instead is that the facts don't fit a pattern of
non-literal copying, or that the allegedly protected work is not actually
protected, or that the scope of the protected work to be compared is so large as
to make any copying de minimis, etc.. I don't see an argument that non-literal
elements of computer programs are not protectable in general, which is what I
think you'd have to argue to actually overturn Whelan. YMMV.
I suspect you already know this, but how Whelan (and all other non-literal
copying claims since 1976) gets around 102(b) is by holding that non-literal
elements fall on the expression side of the idea/expression dichotomy. This is
necessarily messy, as the case law bears out, but no one has come up with a
clear way to distinguish between the idea and its expression, and unfortunately,
I doubt that it would be possible to do so.
So, in answer: I agree with you (and I'd go further in that I'd prefer less
protection for non-literal copying in other kinds of works), but I think that
Google is stuck with Whelan as it is, so that's my starting point. I'd rather
see this decided on Baker v. Selden as a matter of law, but don't think it's
going to go that way.
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