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| Authored by: Anonymous on Thursday, May 03 2012 @ 05:02 PM EDT |
What does this mean? Is he asking the legal teams to summarize this and
whether it has any significance, or is something else happening?[ Reply to This | Parent | # ]
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| Authored by: jbb on Thursday, May 03 2012 @ 05:23 PM EDT |
Google brought it up
here:
While there is no case under the
Copyright Act that is directly on point, the High Court of Justice of England
and Wales recently concluded that computer programming languages are not
copyrightable. SAS Institute, Inc. v. World Programming Ltd.,
[...]The
High Court devoted significant attention to discussing the distinction between
ideas and expression, mainly discussing EU and English law, but also citing 17
U.S.C. § 102(b). See id. ¶¶ 199-207.
[...] The High Court concluded that
the SAS Language constitutes an idea, not expression, and thus is not subject to
copyright protection. Referencing a decision in a prior case, the High Court
wrote:
I think that the distinction which Pumfrey J drew
between a computer program and the language it is written in is, despite his
hesitancy on the point, perfectly consistent with the distinction between
expressions and ideas, procedures, methods of operation and mathematical
formulae.
[...] Also focusing on the distinction between ideas
and expression, the Advocate General concluded:
It seems to me,
therefore, that programming language is a functional element which allows
instructions to be given to the computer. As we have seen with SAS language,
programming language is made up of words and characters known to everyone and
lacking any originality. In my opinion, programming language must be regarded as
comparable to the language used by the author of a novel. It is therefore the
means which permits expression to be given, not the expression
itself.
Oracle responded here:
Google relies primarily on
preliminary opinions in a pending English case recently referred to the European
Court of Justice ("ECJ"). The ECJ has not yet responded to that referral. SAS
Institute, Inc. v. World Programming Ltd., [2010] EWHC (Ch) 1829. The ECJ will
not interpret the U.S. Copyright Act; it will decide the case under the
extensive relevant provisions of European treaty law and the EEC Software
Directive and related case law (id. at ¶¶ 149-95), as well as the legislative
history of the Directive and its adoption by the European Parliament (see id. at
¶¶ 211-227). The English court referred the programming language question to the
ECJ for the very reason that its resolution was not "acte clair," that is, free
from reasonable doubt.
Google relies, in particular, on the opinion to the
ECJ by Advocate General Opinion. Opinion of Advocate General Bot, SAS Institute
v. World Programming Ltd., Case C-406/10 ("SAS Advocate General Opinion").
Google cites the following passage:
It seems to me, therefore,
that programming language is a functional element which allows instructions to
be given to the computer. As we have seen with SAS language, programming
language is made up of words and phrases known to everyone and lacking
originality. In my opinion, programming language must be regarded as
comparable to the language by the author of a novel. It is therefore the
means which permits expression to be given, not the expression
itself.
Id. at ¶ 71 (emphasis added). This analysis ignores the
obvious difference that the language used by a novelist, unlike an original
computer language, is not itself the author's work of original creative
expression. The novelist does not create the language in which she
writes.
In concluding that a computer language is "lacking originality,"
Advocate General Bot's opinion is also at odds with U.S. case law. Even "[a]
factual compilation is eligible for copyright if it features an original
selection or arrangement of facts." Feist Publications, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 350 (1991). Copyright protection is denied based on lack of
originality only to "a narrow category of works in which the creative spark is
utterly lacking or so trivial as to be virtually nonexistent." Id. at 359.
Unlike the white pages at issue in Feist, a typical computer programming
language represents creative work in its selection and arrangement of symbols
that may be sufficient to meet the "originality" requirement.
Moreover, and
of more significance to this case, despite opining that a computer programming
language may not be copyrightable, Advocate General Bot concluded that an
interface may be. He found that the Directive "does not exclude interfaces from
copyright protection" and that "if the expression of the interface constitutes a
substantial part of the expression of the computer program . . . it is eligible
for protection under the Directive." SAS Advocate General Opinion, at ¶¶ 81-82;
see also id. at ¶ 60 (elements of a program enjoy protection "provided that they
contain some of the elements which are the expression of the intellectual
creation of the author of the work").
---
Our job is to
remind ourselves that there are more contexts than the one we’re in now — the
one that we think is reality.
-- Alan Kay [ Reply to This | Parent | # ]
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