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> I question your assertion that 'the "size" of the copying does not matter at all' by asking you to come up with an entirely possible scenario for why there is

> I question your assertion that 'the "size" of the copying does not matter at all' by asking you to come up with an entirely possible scenario for why there is no de minimis case in software, even down to a single character, when there is in every other area of copyright. Where in copyright law for any area is there an established minimum "length"? I've never heard this nor heard lawyers claim of such a thing.

eesmith 5y ago
I never made that claim. I even posited a "super-APL" where a single character was enough to contain the creativity which is a prerequisite for copyright protection. Such a language does not exist, and I don't think it ever could, but there is a slightly-greater-than-0% chance that it could happen. OTOH, your original context for an "entirely possible" scenario at https://news.ycombinator.com/item?id=27730596 https://news.ycombinator.com/item?id=27730596 was "The amount of copying does not matter for a copyright claim", which implied your scenario was not that hypothetical example I posited. (A 1E-20 probability * maximum expected lawsuit payment with successful lawsuit = don't worry about that scenario.) We do know that the courts have decided many cases are de minimis non-infringing use of materials otherwise under copyright. Do you think there is no acceptable de minimis argument in software? If not, why is software somehow special compared to other areas of copyright? A "de minimis analysis ... usually focuses on the amount of the copyrighted material that is copied." - quoting http://patentarcade.com/2020/04/nba-2k-avoids-tattoo-copyright-infringement-in-three-ways.html http://patentarcade.com/2020/04/nba-2k-avoids-tattoo-copyrig... If 'de minimis' use exists in software, what realistic scenario are you thinking of where a single character is enough? To be clear, I think zero shared characters can still show copyright infringement, for reasons you mentioned about abstraction-filtration-comparison. But your "entirely possible" example had no other shared similarities beyond a single character, and I can't see how any court wouldn't think that was a de minimis use of that character - assuming it had copyright protections in the first place!

eesmith 5y ago

I never made that claim. I even posited a "super-APL" where a single character was enough to contain the creativity which is a prerequisite for copyright protection. Such a language does not exist, and I don't think it ever could, but there is a slightly-greater-than-0% chance that it could happen. OTOH, your original context for an "entirely possible" scenario at https://news.ycombinator.com/item?id=27730596 https://news.ycombinator.com/item?id=27730596 was "The amount of copying does not matter for a copyright claim", which implied your scenario was not that hypothetical example I posited. (A 1E-20 probability * maximum expected lawsuit payment with successful lawsuit = don't worry about that scenario.) We do know that the courts have decided many cases are de minimis non-infringing use of materials otherwise under copyright. Do you think there is no acceptable de minimis argument in software? If not, why is software somehow special compared to other areas of copyright? A "de minimis analysis ... usually focuses on the amount of the copyrighted material that is copied." - quoting http://patentarcade.com/2020/04/nba-2k-avoids-tattoo-copyright-infringement-in-three-ways.html http://patentarcade.com/2020/04/nba-2k-avoids-tattoo-copyrig... If 'de minimis' use exists in software, what realistic scenario are you thinking of where a single character is enough? To be clear, I think zero shared characters can still show copyright infringement, for reasons you mentioned about abstraction-filtration-comparison. But your "entirely possible" example had no other shared similarities beyond a single character, and I can't see how any court wouldn't think that was a de minimis use of that character - assuming it had copyright protections in the first place!