DECONSTRUCTING SOFTWARE COPYRIGHT, 30 YEARS OF BAD LOGIC

Greg Aharonian, Internet Patent News Service

1/01/2005
(Original Publish Date: 2001)

For over thirty years, software copyright has been a succession of court cases and law review articles based on bad law, bad logic, bad mathematics, and/or bad physics (Benson, CONTU, Whelan and Altai being all of these). I have decided to write a critical review arguing that software copyright (and dependents like TRIPS, GPL, Bernstein, Junger) should be abolished in light of 17 USC 102b and its equivalents - for one reason - it is bad law with no logical basis in the mathematics and physics of information processing. What follows is a list of over 90 Acts, decisions and law review articles I will be critiquing in the review. A small number of cases are from Asia and Europe, which inherited the problems of the US cases. Some cases deal with patents, for two reasons. One, any decision detracting from software patentability feeds and supports copyrightability. Second, the 1992 Altai case introduced a test for software copyright that is nothing more than some patent procedures without claims but using different words. The two domains have become one, and should so be discussed.