Can Programs Be Copyrighted or Patented?

Rapaport's implementation chart

1. Mooers, Calvin N. (1975), "Computer Software and Copyright", Computing Surveys 7(1) (March): 45-72.
   • Mooers on the distinction between an uncopyrightable idea and a copyrightable expression of an idea:
     "Where does the "expression" leave off, and the "idea" take over? The best insight into this matter comes from discussions of copyright as applied to novels and dramatic productions. In these, "expression" is considered to include the choice of incident, the personalities and development of character, the choice of names, the elaboration of the plot, the choice of locale, and the many other minor details and gimmicks used to build the story. In other words, "expression" is considered to include not only the marks, words, sentences, and so on in the work, but also all these other details or structures as they aggregate into larger and larger units to make up the expression of the entire story.

     "In other words, after the bare abstract "idea" has been chosen (e.g., boy meets girl, boy loses girl, boy wins girl), the "expression" to which copyright applies covers the remaining elements of original choice and artistry which are supplied by the author in order for him to develop, express, and convey his version of the bare idea." (p. 50.)

2. Bender, David (1985-1986), "Protection of Computer Programs: The Copyright/Trade Secret Interface", University of Pittsburgh Law Review 47: 907-958.

3. Chisum, Donald S. (1985-1986), "The Patentability of Algorithms", University of Pittsburgh Law Review 47: 959-1022.
   • Chisum, in "The Definition of an Algorithm" (Sect. B, pp. 974-977), cites several other published definitions:
     • "A method of solution for problem P on device [including a human being] M is a description in a language comprehensible to M of discrete steps performable by M and an ordering of these steps, such that given proper data, if M performs the prescribed steps in the prescribed order, a solution to the problem P will result, if one exists. A method of solution will be called a semi-algorithm for P on M if the solution to P (if one exists) appears after the performance of finitely many steps. A semi-algorithm will be called an algorithm if, in addition, whenever the problem has no solution the method enables the device to determine this after a finite number of steps and halts."
       (R. Korfhage (1966), Logic and Algorithms with Applications to the Computer and Information Sciences, p. 89.)

     • "...five "important features" of an algorithm:
       1. "Finiteness. An algorithm must always terminate after a finite number of steps....
       2. "Definiteness. Each step of an algorithm must be precisely defined; the actions to be carried out must be rigorously and unambiguously specified for each case....
       3. "Input. An algorithm has zero or more inputs, i.e., quantities which are given to it initially before the algorithm begins. These inputs are taken from specified sets of objects....
       4. "Output. An algorithm has one or more outputs, i.e., quantities which have a specified relation to the inputs....
       5. "Effectiveness. An algorithm is also generally expected to be effective. This means that all of the operations to be performed in the algorithm must be sufficiently basic that they can in principle be done exactly and in a finite length of time by a man using pencil and paper."
       (D. Knuth (1973), The Art of Computer Programming: Fundamental Algorithms 1 (2nd ed.), pp. 4-6.)

     • "...three "empirical properties" that have been found to be present "in all algorithms constructed so far."
       1. "Determinacy. The procedure is specified so clearly and precisely that there is no room for arbitrary interpretation. A procedure of this kind can be communicated to another person by a finite number of instructions. The operations described by these instructions do not depend on the whim of the operator and constitute a determinate process which is completely independent of the person carrying it out.
       2. "Generality. An algorithm is applicable to more than just one specific problem: it is used for solving a class of problems, with the procedural instructions valid for any particular set of initial data.
       3. "Efficacy. This property, sometimes called the directionality of an algorithm, means that application of an algorithmic procedure to any problem of a given kind will lead to a "stop" instruction in a finite number of steps, at which point one must be able to find the required solution."
       (M. Aiserman et al. (1971), Logic, Automata, and Algorithms, pp. 308-309.)

       [Chisum continues:] "Many algorithms appear to have another feature—recursiveness: one or more of the steps entails going back and repeating one or more of the prior steps." (p. 976). [!]

4. Newell, Allen (1985-1986), "Response: The Models Are Broken, the Models Are Broken", University of Pittsburgh Law Review 47: 1023-1031.
   • This article should be one click away if you are on a .buffalo.edu machine on campus. If you are not, click here.

   • "I think fixing the models is an important intellectual task. It will be difficult. The concepts that are being jumbled together—methods, processes, mental steps, abstraction, algorithms, procedures, determinism—ramify throughout the social and economic fabric....The task is to get...new models. There is a fertile field to be plowed here, to understand what models might work for the law. It is a job for lawyers and, importantly, theoretical computer scientists. It could also use some philosophers of computation, if we could ever grow some." (p. 1035; my emphasis.)

   • For follow-up (including links to commentary by Donald Knuth), see:

     "Newell 1986: The Models Are Broken, The Models Are Broken!"

5. Papers by Pamela Samuelson:

   1. Samuelson, Pamela (1989), "Why the Look and Feel of Software User Interfaces Should Not Be Protected by Copyright Law", Communications of the ACM 32(5) (May): 563-572.

   2. Samuelson, Pamela (1990), "Should Program Algorithms Be Patented?", Communications of the ACM 33(8) (August): 23-27.
      • direct access

   3. Samuelson, Pamela (1991), "Digital Media and the Law", Communications of the ACM 34(10) (October): 23-28.

   4. Samuelson, Pamela; Davis, Randall; Kapor, Mitchell D.; & Reichman, J.H. (1994), "A Manifesto concerning the Legal Protection of Computer Programs", Columbia Law Review 94(8) (December): 2308–2431.
      • §1 is a good overview; §2 (esp. §2.2) is also good, as are §5 and the Conclusion section.
      • From a special issue on the legal protection of computer programs; other articles elaborate on, or reply to, Samuelson et al.

   5. Samuelson, Pamela (2003), "Unsolicited Communications as Trespass?" [PDF], Communications of the ACM 46(10) (October): 15-20.

      Abstract: "Attempting to stretch existing laws to address previously unforeseen technological issues."

   6. Samuelson, Pamela (2007), "Software Patents and the Metaphysics of Section 271(f)", Communications of the ACM 50(6) (June): 15-19.

   7. Samuelson, Pamela (2007), "Does Copyright Law Need to Be Reformed?", Communications of the ACM 50(10) (October): 19-23.

   8. Samuelson, Pamela (2008), "Revisiting Patentable Subject Matter", Communications of the ACM 51(7) (July): 20-22.
      • "Is everything under the sun made by humans patentable subject matter?"

6. Forester, Tom; & Morrison, Perry (1994), Computer Ethics: Cautionary Tales and Ethical Dilemmas in Computing; Second Edition (Cambridge, MA: MIT Press).
   • esp. pp. 57-68 from Ch. 3

7. Koepsell, David R. (2000), The Ontology of Cyberspace: Philosophy, Law, and the Future of Intellectual Property (Chicago: Open Court).
   • In contrast to Newell (above), Koepsell argues that it is the law, not computer science, that will have to change.

   • Koepsell, David R.; & Rapaport, William J. (1995), "The Ontology of Cyberspace: Questions and Comments", Technical Report 95-25 (Buffalo: SUNY Buffalo Department of Computer Science) and Technical Report 95-09 (Buffalo: SUNY Buffalo Center for Cognitive Science).

     Abstract: This document consists of two papers: "The Ontology of Cyberspace: Preliminary Questions", by David R. Koepsell, and "Comments on `The Ontology of Cyberspace'," by William J. Rapaport. They were originally presented at the Tri-State Philosophical Association Meeting, St. Bonaventure University, 22 April 1995.

     • See esp. Koepsell's §§1 and 4, and Rapaport's §§2 and 3.

8. Johnson, Deborah G. (2001), Computer Ethics (Upper Saddle River, NJ: Prentice Hall).
   • Ch. 6 ("Property Rights in Computer Software"), pp. 137-167.

9. Klemens, Ben (2006), "Private Numbers", Chronicle of Higher Education (3 February): B2; excerpted from his Math You Can't Use: Patents, Copyright, and Software (Brookings Institution Press).
   • Note: This excerpt begins at the bottom of the first page of the PDF document, with the phrase "An entirely new economic arrangement...". (The first article in the PDF is irrelevant.)

10. Crichton, Michael (2006), "This Essay Breaks the Law", New York Times (19 March): WK13.
    • "A case for reforming the way we grant patents."

11. Thatcher, Matt E.; & Pingry, David E. (2007), "Software Patents: The Good, the Bad, and the Messy", Communications of the ACM 50(10) (October): 47-52.

12. Oldehoeft, Rod; Montague, John; Thatcher, Matt E.; & Pingry, David E. (2007), "Patented Algorithms Are Bad, Copyrighted Software Is Good" (letters to the editor), Communications of the ACM 50(12) (December): 9-10.

13. "Time to Abolish Software Patents?", Slashdot (2008)
    • A blog, with some useful links.

14. Touretzky, David (2008), "Gallery of CSS Descramblers".
    • "If code that can be directly compiled and executed may be suppressed under the D[igital]M[illenium]C[opyright]A[ct], as Judge [Lewis A.] Kaplan asserts in his preliminary ruling, but a textual description of the same algorithm may not be suppressed, then where exactly should the line be drawn? This web site was created to explore this issue, and point out the absurdity of Judge Kaplan's position that source code can be legally differentiated from other forms of written expression."

15. On the role of implementation:
    • "As with any well-written patent, in the one granted to McHenry he is careful not to restrict his invention to only one 'embodiment'..."
      —Petroski, Henry (2008), "Twists, Tags and Ties", American Scientist 96(3) (May-June): 188-192; quote on p.192.

16. Boyle, James (2009), "What Intellectual Property Law Should Learn from Software", Communications of the ACM 52(9) (September): 71–76.

17. Editorial (2009, 8 November), "Quick, Patent It!", New York Times.