Last week, on December 14, 2004, intellectual property (IP) consultant Greg Aharonian filed a lawsuit in a San Francisco court, asking the court to remove software from protection of the U.S. copyright laws. According to Aharonian, companies can better protect software using patent law, and the copyrights are unduly creating obstacles to technological advancement.

While on the surface this lawsuit seems arcane, the question of copyrights vs. patents has significant importance to those of us who write code for a living. How the laws are interpreted reflects a confusing legal realm where the concept of IP stretches to the tools we use and our expression of ideas in computer code.

Angles and Earthquakes

Let's say, hypothetically, that you've created a brilliant new RPG program that successfully predicts the magnitude, the location, and the exact date and time of future earthquakes, based upon the number of angels that can be observed on the head of a pin. It's foolproof, it's accurate, and it's predictive. You show it to your boss, and your company immediately calls in its crack team of lawyers. The question for the lawyers is how to protect this valuable piece of software code. Their solution? They register a copyright for it!

Second Thoughts and Economics

Unfortunately, because your company happens to be in the business of rebuilding earthquake-shattered towns and cities, your boss has a few concerns.

Instead of releasing the code or marketing it to governments around the world, your boss determines that such a program (even written in RPG) will have a detrimental effect upon his business model. So he locks it in a safe and immediately fires you.

Your brilliant RPG code is destined to molder in the dark of oblivion; earthquakes will continue to wreak havoc on countless towns and cities; thousands will continue to die, joining the growing population of angels seeking shelter on pinheads throughout the cosmos. Commerce, after all, is king!

Recourse?

Of course, your first thought is that you'll get yourself a new i5 computer from IBM and rewrite the algorithms, perhaps even in Java! After all, this great insight into the workings of the universe should not be suppressed.

Alas! Because the code has been copyrighted, you end up being sued by your former employer. According to his interpretation of the copyright laws, you're barred from replicating these algorithms for a period of 95 years (at which time you will have joined the angel band yourself). You are prevented from re-creating the work--in any form of expression--until the IP rights of the corporation itself have expired.

IBM and SCO's UNIX Copyright

Does this sound absurd (aside from the absurdity of the application itself)? Well, SCO Group is currently suing IBM for billions of dollars for exactly this kind of copyright infringement. SCO Group claims that IBM's contributions to Linux are derivations of an expression of UNIX, for which SCO claims a copyright. Never mind that SCO holds no patents to UNIX. Never mind that UNIX is composed of thousands of lines of code. According to SCO, the "expression" of functions that IBM contributed to Linux are protected from duplication. Linux, in SCO's view, is a derivation of UNIX, so it too is controlled by them.

If Aharonian wins his lawsuit, removing software from the purview of copyright law, suits like that brought against IBM will no longer be litigated. But that's not Aharonian's purpose. His purpose is to question the value of software copyrights themselves.

Copyright Law

Here's how copyright law as it relates to software works today: What you write is controlled by your employer. And though our fantastic scenario of writing an angelic inventory program for earthquake prediction may be beyond the scope of most of us (not you, of course) the legal ramifications of software copyrights can have a debilitating impact upon the advancement of technology.

The First Congress implemented the copyright provision of the U.S. Constitution in 1790. It granted American authors the right to print, reprint, or publish their work for a period of 14 years and to renew for another 14. The law was meant to provide an incentive to authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, in order to stimulate creativity and the advancement of "science and the useful arts," the monopoly needed to be somewhat limited, so the law allowed public access to works in the "public domain" (works whose copyrights have expired). Major revisions to the act have been continuously implemented ever since then--the last being in 1976--hence the current 95-year law.

The Copyright Office began granting copyrights to software code in 1960, at the same time that the Patent Office began granting protection with patents. However, the differences in the processes of applying for a copyright and applying for a patent are monumental.

Different Strokes

Today, the process for patent application requires providing proof that an idea was originated by the individual or organization. The cost of providing such proof can be substantial. The legal protection for a patent extends for a period of 20 years, but it can be extended under a variety of conditions.

By comparison, nearly any expression can be copyrighted, and its protection, which is available to both published and unpublished works, lasts much longer. A copyright generally gives the copyright owner the exclusive right to authorize others to reproduce the work or to create derivative works based upon the original.

However, no publication or registration or other action by the Copyright Office is required to secure a copyright (though there are advantages to seeking registration). The legal copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy for the first time.

So, though an idea cannot be copyrighted, the first time a copy or an expression of an idea is "fixed," the originator has legal status and legal protection for the work. In fact, since 1976 the author of the work does not even need to place the copyright symbol (©) or a copyright notice on the work as a warning to others. Copy "rights" are granted without any requirements to notify anyone.

Advantages of Copyrights

Yet--and here's the killer--while a patent grants protection for only 20 years, a copyright automatically grants legal protection for 95 years. Meanwhile, the copyrights to "works for hire"--such as our hypothetical earthquake prediction program written for our hypothetical construction company--are automatically transferred to the employer. It's like having a free pass to legal protection of software.

As you can easily see, the legal advantages of copyrighting software for a business are substantial, compared to applying for a patent. Instead of needing to prove the originality of the code, all the business has to do is prove that it has an original copy in its possession. With such a copy, the business can control how all derivations of an idea are used. Any person with a connection to the original work is intrinsically controlled by the owner of the original copyright.

A Future for Software Copyrights

Aharonian's case is aimed at clarifying which laws the software industry can use to protect its products. Industry giants like IBM and Microsoft use both patents and copyrights to protect their products.

Most industry analysts believe that copyright laws provide the basis for legally protecting software products from piracy, which costs an estimated loss of billions of dollars of royalties annually. But Aharonian believes that software copyright laws violate the right to due process as identified in the U.S. Constitution because there are no clear boundaries for appropriate use. That means industry players and courts do not have a clear idea of the rules for protecting software. According to Aharonian, "Until you're sued and a judge makes up his mind about what is the idea and an expression, no one knows."

In other words, in Aharonian's view, until such time as the courts clarify what exactly is being protected by the copyright of any piece of software, programmers, customers, and companies are forced to try to predict their legal earthquakes by tracking the angels on the pinheads stuck in an expensive and confusing legal pincushion.

For those of us who write code--even RPG code--this case could have substantial ramifications for some time to come.

Thomas M. Stockwell is Editor in Chief of MC Press Online, LP.