Archive of UserLand's first discussion group, started October 5, 1998.

Re: Progaming Code as protected speech

Author:Jeremy Bowers
Posted:4/7/2000; 11:14:34 AM
Topic:Progaming Code as protected speech
Msg #:16018 (In response to 16014)
Prev/Next:16017 / 16019

My logical train of thought asks, "If code is protected speech, how can you patent it? Shouldn't it be more analogous to a trademark?"

No, trademarks are only identifying marks for companies and products; you can't protect code that way. You might put code in your trademark (like composing the letters "IBM" out of "Hello World" or something), but that still wouldn't prevent me using the code in a program, only in displaying the code in the form of that trademark.

Pessimistically speaking, I at first was thinking along the lines of you and Dave, but I now realize that such optimism may be a bit unfounded. As I posted on my 'blog, there has never really been any overlap between the patent system and the copyright system, and the two systems can't be mixed as they were set up with entirely different objectives and methods. So I had thought that by labeling "code" as "expression", we'd inevitably be removing it from the realm of patent.

Later I realized that you could already copyright code, which is to say, the law of the land has already recognized it as expression for a long time. (You can't copyright the workings of a machine, only pantent.) So I fear that, beyond sending a wake-up call to the lawyers and lawmakers that we have a problem, there's no real reason to believe that this alone will cause any reversal of software's unique position of being the only thing I know of that is currently restricted by both patents and copyrights. (Anybody who can come up with something else similarly restricted please let me know.)

However, if there are people who percieve this double-restriction as a problem, this might help awaken them to the issues, and hopefully we find that code lives solely under copyright law. This ruling might serve as a weapon, but we can't wait for it to do something; we really need to figure out a way of pushing this issue somehow. In the meantime, software will hold the status of "most restricted expression/machines on the planet."

Unfortunately, there is no precedent; nothing before has ever fit under both systems, so my contention that it should only work under one or the other is more wishful-thinking then legal doctrine; up to this point it's simply been the way things work, not the deliberate partitioning of the courts, that has caused the strict dichotomy.

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