In past years we've had stories about both Oregon and California claiming copyright over their own laws, which is ridiculous. If copyright is supposed to be about the incentives for creative expression, then it should have nothing to do with lawmaking at all. It's not as if the state needs a copyright incentive to write laws -- though some states have tried to argue that it needs the incentive to entice big corporate entities to print the laws. That, too, is ridiculous, as plenty of public domain info gets printed all the time -- and it really has no bearing on the simple fact that laws are public domain material, considering that the public is expected to know and obey them. While the Copyright Act makes it clear that any work done directly by federal government employees is automatically in the public domain, it's just slightly squishier when it comes to works from state governments, though there, too, it is generally believed that they fall in the public domain, as they should.

In the last week, a lot of attention was paid to the fact that Washington DC had been claiming a copyright on its laws, saying that you could not download a digital copy, and the state couldn't even release an entire copy of its own laws under a FOIA request, because of the copyright and the contract it held with outside publishing firms (initially West and, more recently, Lexis). As with the stories in Oregon and California, the person who helped drive attention to just how crazy this is was Carl Malamud, hero to everyone who believes in the importance of open access to public information. This time, he paid $803 for a copy of the code, scanned it all, and sent copies on USB drives in the shape of famous American Presidents to a bunch of folks.

Normally, at this point in the story, we hear about the local government hemming and hawing or even issuing vague threats. But not in the case of DC. Over the course of a few days, it appears that Washington DC's tech savvy General Counsel V. David Zvenyach quickly moved to deal with the problem. Part of the issue was that the only digital copy of the code that they had was the one given to them by West, and it contained a variety of extraneous information that was West's IP, including West logos on each section of the law (representing many thousands of copies). Zvenyach had Joshua Tauberer come by and spend a day removing every bit of West IP from the document and quickly releasing a downloadable copy of the DC Code with a CC0 public domain license.

That's pretty awesome. To go from having the code locked up for no good reason to a public domain downloadable release in days is pretty cool. Kudos to Malamud, Zvenyach and Tauberer for their part in this, as well as Tom MacWright, who first sought the copy of the code and brought this issue to the attention of Malamud and others.

Of course, it's not a perfect solution. As MacWright notes in his post about this release:

There are a few things that this isn’t: it isn’t the official copy of the code, and lawyers would be ill-advised to cite it alone. It isn’t up-to-date – the council is fast-moving and this is just a snapshot. In time we’ll fix these problems too.

Yes, even though it's being released directly by the DC Council on their website, it's designated as an "unofficial copy" and it's only up-to-date through last year. However, hopefully others will get it up to date, and eventually the DC Council will be able to list an "official" copy as well. Oh, and for those living in or around DC, MacWright is also planning a hackathon around this new code, to see what awesome and useful tools people can build on top of it.

Recently Techdirt wrote about the heated debate on the subject of whether people should learn to code. We pointed out that some knowledge of that subject could be particularly useful in helping people understand why copyrighting APIs or patenting software is just crazy -- whatever the abstract legal arguments, in practice both make programming much, much harder.

An obvious situation where such practical knowledge could be crucially important is in court cases dealing with software. Rather neatly, the long-running court case between Oracle and Google, where the former is accusing the latter's Android of infringing on its code in various ways, has thrown up a perfect example of this.

It arose in an exchange between Judge Alsup and Oracle's main lawyer, the high-profile David Boies, best known for representing the US Justice Department in the United States v. Microsoft case. Boies claimed that the fact that the jury had decided Google's "rangeCheck" code had copied Oracle's implementation of the same function was evidence that Google was trying to save time. The argument of Boies was that Google consciously copied those few lines from Oracle in order to accelerate development -- and thus to start making money faster through daily activations of phones running its Android operating system.

But Judge Alsup was having none of it:

I have done, and still do, a significant amount of programming in other languages. I've written blocks of code like rangeCheck a hundred times before. I could do it, you could do it. The idea that someone would copy that when they could do it themselves just as fast, it was an accident. There's no way you could say that was speeding them along to the marketplace. You're one of the best lawyers in America, how could you even make that kind of argument?

This is a perfect example of a judge being able to draw on his personal experience of coding to dismiss what a clever lawyer probably thought was a clever argument.

Contrast this with another judge, talking this time about software patents, as recently reported on Techdirt:

Judge Michel seemed unaware of the depth of the software industry's dissatisfaction with the patent system. He suggested the patent system's critics were relatively marginal figures not representative of the views of the broader technology industry. And he didn't seem to understand the dynamics of the patent arms race currently affecting the software industry.

"If software is less dependent on patents, fine then. Let software use patents less as they choose," Michel said. "If other industries are terribly dependent on patents, then let's not wreck the system just because software people are unhappy."

No one who has tried to code in any depth could dismiss the problems caused by software patents so glibly -- it would be hard, for example, to imagine Judge Alsup saying this.

Learning to code certainly isn't a panacea, nor is it relevant for everyone. But for those professionals who must make important decisions about software -- judges, for example -- a basic programming literacy is indispensable. As it is, the tech industry must count itself lucky that the Oracle vs. Google case seems to have ended up in front of one of the few judges qualified to decide it.

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There's an interesting debate that's broken out in the tech world, kicked off by tech/coding superstar Jeff Atwood arguing that people shouldn't learn to code. He was mostly responding to an announcement by NYC Mayor Mike Bloomberg that he wanted to learn how to code: Jeff found this to be a misuse of Bloomberg's skills:

A noble gesture to garner the NYC tech community vote, for sure, but if the mayor of New York City actually needs to sling JavaScript code to do his job, something is deeply, horribly, terribly wrong with politics in the state of New York.

He goes on to explain why he thinks this is a bad idea, even as he's a fan of programming himself. I won't go through his full list of points. You can read them on his site yourself, but it does feel like a lot of his complaint isn't so much about people learning to code, but the idea that people learning to code will mean more people coding for a living. For example, there are these two points:

• It assumes that adding naive, novice, not-even-sure-they-like-this-whole-programming-thing coders to the workforce is a net positive for the world. I guess that's true if you consider that one bad programmer can easily create two new jobs a year. And for that matter, most people who already call themselves programmers can't even code, so please pardon my skepticism of the sentiment that "everyone can learn to code".
  
  
• It implies that there's a thin, easily permeable membrane between learning to program and getting paid to program professionally. Just look at these new programmers who got offered jobs at an average salary of $79k/year after attending a mere two and a half month bootcamp! Maybe you too can teach yourself Perl in 24 hours! While I love that programming is an egalitarian field where degrees and certifications are irrelevant in the face of experience, you still gotta put in your ten thousand hours like the rest of us.

While I understand the points he's raising in both of these cases, it feels like he's taking the "everyone should learn to code" argument way beyond what is generally meant in that discussion. I don't think anyone is saying that people should learn to code for a living. Lots of people learn math, but don't become mathemeticians or even use math in their daily jobs -- but it doesn't mean it hurts to understand math.

In fact, I think that Jeff recognizes this. He notes that a better focus would be:

The general populace (and its political leadership) could probably benefit most of all from a basic understanding of how computers, and the Internet, work. Being able to get around on the Internet is becoming a basic life skill, and we should be worried about fixing that first and most of all, before we start jumping all the way into code.

And that's something I think everyone agrees on. It's just that some folks are suggesting that the way to better understand computers and the internet is if they have some familiarity with code. And thus, I actually think that Jeff and those arguing against him, may actually be in agreement. It's just that some people think that understanding code is a good way to understand computers and the internet.

One of the better responses to Jeff points out that learning to code is different than preparing for a job as a coder. As that post notes:

Learning to program is not the same thing as training for a programming career. Learning new skills opens up new perceptual avenues and cognitive spaces. I'm learning to sew right now, not because the world needs another tailor but because I want to be able to recognize quality in clothing and create pieces that I can't find. Novice coders feel the same way about their digital goods and should be encouraged to continue. Learn to program.

Perhaps where the major difference comes in is that Jeff believes that learning to code is not a stage in understanding computers and the internet, and he compares it to plumbing:

I can also recognize plumbing problems when I see them without any particular training in the area.

However, as esmoov writes in his response, Jeff may have just internalized what he has learned about plumbing:

He may not have had formal training (the professional/personal equivocation again) but he has been trained by an unruly digestive movement, a low water tank and the horrible things 18-22 year-olds do to and around toilets. My dad showed me how to fix a broken chain in the tank. Before I learned that, toilets had three states: working, clogged and broken. After learning to fix the chain, I added a new state to which my toilet-perception could resolve: loose or broken chain. Again, the ability to take in, cut up and categorize the world is a product of the things learned.

Indeed. I don't think that learning the basics of programming solves all internet/technology illiteracy, but it certainly helps people to understand the lay of the land better. It's not necessary, but it can help them better understand the problems and potential solutions when they come up -- even if they don't intend on programming themselves. It can lead them to recognize, for example, how bizarre it might seem to copyright an API or patent software itself. That's a concept that's a little harder to comprehend if you don't understand programming at all. That isn't to say that understanding programming is completely necessary, but it certainly can help in getting people to a point of digital literacy.

We've been following the legal fight between SAS and World Programming Limited (WPL) for quite some time. If you don't recall, WPL essentially recreated some functionality of SAS's offering, not by copying the software itself or the source code, but basically by reading SAS's manuals about what its software did. The UK's High Court said this did not infringe, and the case got kicked up to the European Court of Justice (which has been pretty good on copyright issues lately). In the fall, the EU Advocates General recommended that the court make clear that software functionality is not subject to copyright, and it appears that's exactly what the court has now done.

In a relatively short ruling, the court points out that, while software itself may be covered by copyright, "the ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright." Basically, the EUCJ properly recognized the difference between protecting the idea (not copyrightable) and the expression (copyrightable). The court points out that actual code can still be covered, but the features generated out of that code is a different story:

As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

Also important in the discussion is whether or not the software maker could use a license agreement to effectively prohibit this. This is a question that courts have been dealing with for a while: can you effectively remove exceptions to copyright -- or can you effectively expand the power of copyright -- via an overly inclusive license agreement. Here, thankfully, the court rejects that idea:

Consequently, the owner of the copyright in a computer program may not prevent, by relying on the licensing agreement, the person who has obtained that licence from determining the ideas and principles which underlie all the elements of that program in the case where that person carries out acts which that licence permits him to perform and the acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner in that program.

[....]

It must therefore be held that the copyright in a computer program cannot be infringed where, as in the present case, the lawful acquirer of the licence did not have access to the source code of the computer program to which that licence relates, but merely studied, observed and tested that program in order to reproduce its functionality in a second program.

It's always nice to see courts getting copyright rulings right (or, at least, mostly right). It's been much rarer in the US, but it seems like the EUCJ has really been thinking a lot more carefully about copyright law lately.

Last week, we wrote about how French Twitter users were being warned not to use social media tools like Twitter to reveal local polling or election results before all the French voting booths closed in the Presidential election. We pointed out how silly this was, and it appears that folks in France used a simple mechanism to get around the rules: using WWII-era coding techniques to share information in the same manner that the French Resistance used:

As a result, incumbent Nicolas Sarkozy became either Tokaji wine which, like his father, comes from Hungary, or Rolex because of his perceived "bling-bling" lifestyle.

His Socialist opponent Francois Hollande was either Gouda cheese (from Holland) or a soft, sweet "Flanby" caramel desert -- an old and unforgiving nickname for the portly frontrunner.

Far-right candidate Marine Le Pen was associated with the names of totalitarian regimes or rodents and Communist Party-backed Jean-Luc Melenchon was either a rotten tomato or something linked to the former Soviet Union.

From there, it sounds like people just had fun with it, figuring out all sorts of ways to obliquely refer to the different candidates and how well they were doing without directly referring to any of them. Once again, the internet views censorship as an obstacle, and routes around it, through a rather creative form of "encryption."

A few weeks ago, we noted the problem of judges who don't understand technology in highlighting how the judge in the case concerning the Sony PS3 jailbreak had ordered that George Hotz (Geohot) "retrieve" the jailbreak code that had been distributed. As we pointed out, you can't retrieve code that out's there on the internet. It's not a physical good. The comments on our original article had some claims from some of our usual critics, claiming that our statement that the judge had asked for the impossible was "FUD" and not accurate, and even accused me of intentionally misleading readers here.

Well, it appears that the judge has reconsidered, and actually agrees with me and apologized for the original order:

The judge also backed off on an order that Hotz "retrieve" the code from anybody who he may have forwarded it to.

"It's information. It can't be retrieved. It's just not practical," Illston said. "What would they do, Xerox it and mail it back?"

Illston said she changed her mind because she was not clearly aware of the details in her earlier order.

"This kind of got away from me and I apologize for that," she said from the bench.

That said, the article does still highlight how she has allowed Sony to comb through Hotz's computers looking for any information "that relates to the hacking of the PlayStation." Hotz's lawyers had protested this, and the judge said that it's standard to search through the entire contents of someone's computer to find things like child porn, to which his lawyer noted that "we're certainly not dealing with child pornography," but the judge didn't bite. Despite concerns from Hotz's lawyer, the judge told them "That's the breaks."

Lots of people got a good ironic laugh from the news that Microsoft, which has repeatedly complained about "piracy" in China, got caught blatantly copying code from a small startup named Plurk. Microsoft blamed a vendor and shut down the service. Plurk, for its part, got a ton of free publicity, and apparently it doesn't want to give it up. It's sent out a statement to lots of media folks (and us) with absolutely nothing of substance, but which says that the company is still considering legal action, while going on and on about how its just a small company that can't even afford sales people or a marketing person to write this email. And yet, it thinks it wants to distract itself with a lawsuit against Microsoft? If it can't afford sales people, those lawyers might be a bit costly. Yes, Microsoft copied your code. Time to use that to your advantage, and whining about the legal action you might take doesn't get anyone else to actually care about your product.

Meanwhile, another provider of similar software (though open sourced), Status.net took a smarter approach. Blaise points out that Status.net put up a blog post telling Microsoft to go right ahead and take its code. After all, it's open source (and they have a Chinese translation already). That's what you're supposed to do.

Lots of folks have been submitting the story of Microsoft's China operations being caught with its fingers in the cookie jar in directly copying the code from a small company called Plurk. This isn't just the look and feel that was copied, but it appears that some of the code itself was directly copied. Of course, this seems doubly amusing, since Microsoft has, in the past, been at the forefront of complaining about "piracy" in China -- even as the details have long suggested Microsoft benefited greatly from unauthorized copying of its software in China, by building tremendous lock-in and making Microsoft the defacto standard. Of course, when a Microsoft exec recently announced that "piracy" was no longer a threat who knew he meant because Microsoft had decided to go in the other direction and use it to its own advantage?

Of course, I'm joking there. Microsoft continues to insist that piracy is a huge problem, and over in India, Dan alerts us that Microsoft has actually been fined for harassing "pirates" by trying to take them to court in the national capitol, instead of where the "piracy" actually happened:

According to the Court, Microsoft is needlessly abusing its unlimited cash flow as a power tool to financially hurt the defendants, who will have to travel all across the country in order to defend themselves. This abuse of "money power" to "harass" defendants is unacceptable according to the Court.

"When the constitution of India provides equality before law, this equality has to be all pervasive and cannot be allowed to be diluted because of money power or lobbying power," Judge Dhingra commented on the case.

So, it's fine to try to bankrupt "pirates" as you're pirating software yourself? Of course, Microsoft will squirm out of this one just fine. It'll claim it was a mistake, probably throw some money at Plurk (who just got a ton of free PR) and move on, still claiming that "piracy" is bad, bad, bad and must be stopped (especially in China).

A few weeks back there was a lot of news over a former Goldman Sachs programmer who was arrested by the FBI for supposedly "stealing code" he had worked on while at GS. The headlines made a big deal over the importance of this software, talking about how its proprietary nature could represent a "huge loss" for the banking giant. That struck me as typical journalistic hyperbole, and it's great to see the NY Times actually be the one to step in with an op-ed from a programmer who points out how blown out of proportion this story likely is compared to the real issue. The op-ed piece makes two key points: (1) It's pretty common for programmers to keep copies of their code, if only to be able to refer back to it and (2) the code, by itself, isn't really all that useful. He notes that simply reusing someone else's code really doesn't help much -- and what most companies want is better code that is better suited to what their approach is -- meaning that they want the know-how of the programmer, not the old code.

Reader Kyle Brady writes in to tell us his own story about how he fought back against one of his Computer Science professors, who threatened to fail him because he posted the code he wrote online. Kyle is a CS student, and only posted the code after the assignments were due (so it wasn't helping other students). He did so because he figured it might help him find a job to show examples of his coding skills and also because he believes in the value of sharing code. But his professor claimed that it was a violation of school policies, potentially "cheating" and that he could fail Kyle. Kyle responded by going through the school's Academic Integrity Policy, and not finding anything that he violated. When the professor did not agree with Kyle's response (to put it mildly), Kyle contacted the CS department head and explained his position. The department head researched the situation and finally agreed with Kyle that there was no violation of academic policy -- and, more importantly, that professors could not bar students from posting their code online or penalize students from doing so.

I have to admit that I'm rather surprised that a separate issue did not come up. That is, many schools make students sign something saying that any code they create as a student has the copyright automatically assigned to the school. This has resulted in conflicts, as students are surprised to learn that they can't do anything with the code they created as students. I don't know if SJSU does this or not, but you could see a school claiming that since it holds the copyright on such code, that it could prevent students from posting the content. Luckily, that does not appear to be the case in this situation.