EU Advocate General: 'Functionalities Of A Computer Program Cannot Be Protected By Copyright'

from the but-what-about-patents? dept

Back in September, Techdirt wrote about an important case that had been passed up to the European Court of Justice. It raised some key questions about creating software that was interoperable with an existing program – whether, for example, the features of the latter were in some sense copyrightable.

Although the full Court decision won't be out until next year, one of the Court of Justice's Advocates General (there are eight of them, "to present opinions on the cases brought before the Court") has published his views on the case [pdf]:
In the first place, with regard to the functionality of a computer program, the Advocate General defines it as the set of possibilities offered by a computer system – in other words, the service which the user expects from it.

Starting from that premiss, the Advocate General considers that the functionalities of a computer program are not eligible, as such, for copyright protection. The functionalities of a computer program are in fact dictated by a specific and limited purpose. In this, they are similar to ideas. That is why there may be a number of computer programs offering the same functionalities.
That seems like common sense: the functionality of a program is just something that it can do, which is itself just an idea. The Advocate General then goes on to make a very important point:
if it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.
The thing is, exactly the same could be said about software patents too. One of the problems with them is that they often concern basic programming techniques, and as such give the patent holder a monopoly on those key ideas. It's why copyright – which protects the implementation of ideas – is more appropriate than patents, since it does not block alternative ways of creating the same effect. It's also why markets like smartphones have turned into impenetrable patent thickets.

This is not the final judgment of the European Court of Justice, although the Advocate General's opinion does carry considerable weight. Moreover, even the European Court of Justice does not decide the case definitively, but merely offers its interpretation of European law. It is ultimately down to the national court in the UK to use that ruling to make its own judgment. So there's still a long way to go before this case and the issues that it raises are settled. But it's definitely off to a good start with this opinion: had the Advocate General opined differently, creating interoperable programs in Europe would have started to look a much more perilous – and expensive – undertaking.

It's also worth noting that there is a very similar case going through the courts in the US: Oracle has accused Google of infringing on its Java copyrights in much the same way that SAS accused WPL in Europe. It will be interesting to see whether the US judge agrees with the Advocate General's analysis.

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Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Richard (profile), Nov 30th, 2011 @ 3:52am

    Disaster

    If any of these decisions goes the other way it will be a disaster - interoperability will be dead.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Drak, Nov 30th, 2011 @ 5:24am

    Imagine if using an incremental counter was patented, or copyrighted..wow. I haven't done the research so it actually might be. The way some of the patents read it might say something like

    "Use of a static variable used to hold information on the cycle count of a particular operation. Specifically in this case, the number of posts related to democrats and/or republican bullshit on yahoo news user comments fields."

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Steve R. (profile), Nov 30th, 2011 @ 5:25am

    Form Follows Function

    The buzz words "form follows function" is used by the architectural community and gets into the concept of ergonomic design. This concept can be easily applied to computer systems. Designers (programmers), for obvious ergonomic reasons, are "forced" into predefined similar designs. Any attempt to apply so-called "intellectual property" rights over methods and processes is an abomination that should not be protected.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    DannyB (profile), Nov 30th, 2011 @ 5:43am

    Re:

    Careful now.

    I have two patents that might be infringed. First, a business method patent on rigging elections. Second, a patent on the technical means of "assisting" voting machines in producing the correct results.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    ken (profile), Nov 30th, 2011 @ 6:41am

    Programs are simply applying what the computer can already do. You are not inventing anything. It is like writing a song and then saying you invented that arrangement. patents are completely the wrong instrument to protect computer programs especially since most programs are written in already established algorithms.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Nov 30th, 2011 @ 6:43am

    Re:

    Incremental counters are part of every programming language there is prior art going back to the abbacus.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Anonymous Coward, Nov 30th, 2011 @ 7:25am

    Copyright and Patent Everything

    I say let them have all the patents and copyright they like. Just remove the monopoly part. Then, getting patents and copyrights will be like 'counting coupe' from the Apache tradition (no, not the web server, the Native American tribe). The more 'coupe' one has the greater their 'esteem', or maybe that should be 'self esteem' as they would be the only ones counting.

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    MrWilson, Nov 30th, 2011 @ 8:41am

    Re: Re:

    That's an easy problem to solve. Just add, "on an ipad" to the patent language and suddenly it's a brand new idea that no one has ever thought of before!

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    MrWilson, Nov 30th, 2011 @ 8:44am

    Re: Copyright and Patent Everything

    I say make them pay exorbitant property tax if they want to treat IP as real property.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Nov 30th, 2011 @ 9:13am

    Re: Form Follows Function

    Obviously, you aren't a programmer. First, there are many different programming languages and many many different ways of doing the same thing even within a given language.

    For example in C the following all accomplish the same thing:

    Example 1:
    i++;

    Example 2:
    i == i + 1;

    Example 3;
    x == i++;
    i == x;

    Example 4;
    x == i;
    x++;
    i == z;

    etc...

    That is why software is copyrightable, because there are so many ways to do things it's obvious when someone actually copies your code.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    The Groove Tiger (profile), Nov 30th, 2011 @ 10:28am

    Re: Re: Form Follows Function

    A programmer wouldn't confuse assignment and comparison operators.

    Also a programmer would know that x = i++ would assign i to x, and then increase i by one, then i = x would restore i to the previous value. This is different from ++i where the increment is done before the assignment.

    And the last one won't accomplish what you want, since the value of z is unrelated.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    CD (profile), Nov 30th, 2011 @ 10:57am

    Re: Re: Copyright and Patent Everything

    In addition, a Litigation Tax equal to some percentage of the agreed settlement or award in a case regardless of outcome and paid by the owner. This tax would then have to exempted from costs that can be sued for. Sure you can get attorney fees, but paying for your tax, that's on you.

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    Steve R. (profile), Nov 30th, 2011 @ 1:32pm

    Re: Re: Form Follows Function

    So exactly how is blatantly obvious that Z = X + Y somehow constitutes unique string of code that only you "invented" without depending on previously existing code that someone else wrote.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Nov 30th, 2011 @ 3:07pm

    Re: Re: Form Follows Function

    If you have the source code to compare because if you compile that and decompile it after it will show only one way of doing it.

    Those things are like metatags for a specific call in the parser and they all will produce the same low level code and thus be the same if you don't have the source code to show that they were written differently.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Nov 30th, 2011 @ 6:18pm

    Re: Re: Form Follows Function

    Let's consider the case when the idea of increment is patentable.

    In your examples, example 3 is direct infringement against Example 1 because it contains an exact copy of it. Also example 4 is infringement because it copies the core functionality (++) being patented.

    Btw, even if what you said holds, there is apparently more than 5 developer in the world that needs some way to increment a variable...

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Lawrence D'Oliveiro, Nov 30th, 2011 @ 6:30pm

    Re: many many different ways of doing the same thing

    Is “many different ways of doing the same thing” sufficient grounds for copyrightability, then?

    I ask because a friend recently introduced me to geometric algebra, which allows for a different way of formulating such things as complex numbers and quaternions. Does that mean that mathematics is copyrightable?

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    TURIANTO, Dec 5th, 2011 @ 3:14am

    Tas Souvenir Murah

    thanks for the info given to us

     

    reply to this | link to this | view in thread ]


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