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Careful! I’ve always felt that, as written, copyright should not apply to most software. Since only creative expressions may be copyrighted and functional exp

Careful! I’ve always felt that, as written, copyright should not apply to most software. Since only creative expressions may be copyrighted and functional expressions are not copyrightable, it’s very hard to match up the copyrightable portions of software with those that are not. Requiring a declaration of what parts are and are not copyrightable for software would be a major shift in policy and require major changes in software methodology. It’s not a big jump to think that any output of AI of software code output would not be copyrightable, regardless of original origin. Another example of “Software wants to be free.”

brookst 4y ago
Not advocating copyrightable software, but it seems clear to me that if databases are copyrightable because they represent curation, then software must be too. Any line of code, probably not. But a program as a whole, sure. Otherwise I think you blow up music copyrights too, since a single note isn’t copyrightable and a song is just a bunch of individual notes. At some point, choosing, ordering, and organizing a collection of non-copyrightable quanta produces a copyrightable work. And I think it had to be that way.
- pclmulqdq 4y ago
  I think the open question is whether software is in the realm of patents or of copyrights. It's not unreasonable to suggest the former, since software is kind of like a widget that does stuff, except virtualizing the "widget" part to run on a generic widget of sorts. Copyrights traditionally applied to works that you would consider "artistic" rather than "inventions." What you're suggesting, about a minimal work, is litigated endlessly with respect to music copyrights (since a lot of pop music is very similar, arguments about plagiarism get crazy), but is part of the law already.
  - brookst 4y ago
    Aren’t dry, non-fiction books copyrightable? I don’t think “creative” necessarily means “artistic”, just making something where there was nothing. It’s hard for me to see a software program as a whole as uncreative in the same way logarithm tables are. I agree it’s a complex are with no easy answer. But I really think that software, like words and notes and numbers, scales from the generic and unprotectable to the highly creative and protectable. I guess I’m saying we shouldn’t invalidate copyright based on the medium being software, any more than we would for the medium being audio.
    - randombits0 4y ago
      The expression can be as dry as a desert. Is the result an act of creativity? The bar is pretty low. Say you had a book that listed the price of eggs over 100 years. You introduced each chapter, perhaps describing the egg market at the time, etc. The book is copyrightable though lists of egg prices aren’t. Maps are another fun case for copyright.
  - randombits0 4y ago
    It’s neither, it doesn’t fit. Chip masks are another whole branch of IP law. As strange as it sounds, they are a bit like two sides of the same coin.
  - theGnuMe 4y ago
    Software alone is not patentable. You get around that by patenting a system.
    - pclmulqdq 4y ago
      That is the state of the law today, where software gets copyrighted and can't be patented, but the debate about this is more about what ought to be the case.
      - theGnuMe 4y ago
        Good luck changing it!
- smeagull 4y ago
  It would be good if songs weren't copyrightable. Going back to having music as a part of culture would be nice.
- hakre 4y ago
  software works are normally subject to copyright without much further ado. database works are more commonly subject to rights _similar_ to copyright, but often a class of work in its own right.
  - brookst 4y ago
    The US has for IP protections: copyright, patent, trademark, trade secret. There is no “similar to” copyright. Databases can be copyrightable. Not all are, but to the extent IP protection extends to databases it will virtually always be copyright, with maybe an occasional trade secret (which is almost the opposite of copyright)
- randombits0 4y ago
  While not so in other jurisdictions, databases are not copyrightable in the US. That was true when I last read Groklaw at least.
  - shagie 4y ago
    Sweat of the brow (any work you do is copyrightable) https://en.wikipedia.org/wiki/Sweat_of_the_brow https://en.wikipedia.org/wiki/Sweat_of_the_brow vs. "Original work of authorship" https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St... (in particular the comparison section https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States#Compilations_of_facts_and_the_sweat_of_the_brow_doctrine https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St... ) The court case that set this difference down was Feist Publications, Inc., v. Rural Telephone Service Co. https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R....
- pmoriarty 4y ago
  "if databases are copyrightable because they represent curation, then software must be too." Circling back around to creative works, the process of making art is also one of curation, as had been amply demonstrated over 100 years ago by the Readymades of Marcel Duchamp.[1] The curation involved in prompt selection and selection of which AI-generated works/images to use should therefore be just as copyrightable as databases, if all that copyright demands is curation. [1] - https://en.m.wikipedia.org/wiki/Readymades_of_Marcel_Duchamp https://en.m.wikipedia.org/wiki/Readymades_of_Marcel_Duchamp
  - Riverheart 4y ago
    I'll just go ahead and say Readymades aren't art and express my belief that the artistic community will survive the copyright loss of loosely arranged furniture so we can avoid justifying the current state of affairs with avante garde silliness. John Cage made a musical piece 4'33 which is 4 minutes and 33 seconds of silence which has as much to do with music as Readymades do with art. His other works include curated noises such as buzzing blenders, falling objects, and street traffic. The only art is the act of convincing someone these things are art or deserving of copyright.
    - pmoriarty 4y ago
      I've yet to find a better definition of art than that of Andy Warhol, who said "art is what you can get away with." Considering that both Duchamp and Cage got away with convincing the world that their work is art, it is.
      - sethrin 4y ago
        To the degree that I've been able to verify, Warhol borrowed that one from Marshall McLuhan.
    - andybak 4y ago
      John Cage also wrote some genuinely beautiful music and was a sincere and thoughtful artist. It just needs to said that he wasn't a merely a "gimmick" man.
layer8 4y ago
We speak of software design for a reason. Arguably, anything involving substantial design work is copyrightable. Buildings, for example, are copyrightable, even when they only exist as architectural documents or as models. Software is rather similar.

brookst 4y ago

Not advocating copyrightable software, but it seems clear to me that if databases are copyrightable because they represent curation, then software must be too. Any line of code, probably not. But a program as a whole, sure. Otherwise I think you blow up music copyrights too, since a single note isn’t copyrightable and a song is just a bunch of individual notes. At some point, choosing, ordering, and organizing a collection of non-copyrightable quanta produces a copyrightable work. And I think it had to be that way.

pclmulqdq 4y ago
I think the open question is whether software is in the realm of patents or of copyrights. It's not unreasonable to suggest the former, since software is kind of like a widget that does stuff, except virtualizing the "widget" part to run on a generic widget of sorts. Copyrights traditionally applied to works that you would consider "artistic" rather than "inventions." What you're suggesting, about a minimal work, is litigated endlessly with respect to music copyrights (since a lot of pop music is very similar, arguments about plagiarism get crazy), but is part of the law already.
- brookst 4y ago
  Aren’t dry, non-fiction books copyrightable? I don’t think “creative” necessarily means “artistic”, just making something where there was nothing. It’s hard for me to see a software program as a whole as uncreative in the same way logarithm tables are. I agree it’s a complex are with no easy answer. But I really think that software, like words and notes and numbers, scales from the generic and unprotectable to the highly creative and protectable. I guess I’m saying we shouldn’t invalidate copyright based on the medium being software, any more than we would for the medium being audio.
  - randombits0 4y ago
    The expression can be as dry as a desert. Is the result an act of creativity? The bar is pretty low. Say you had a book that listed the price of eggs over 100 years. You introduced each chapter, perhaps describing the egg market at the time, etc. The book is copyrightable though lists of egg prices aren’t. Maps are another fun case for copyright.
- randombits0 4y ago
  It’s neither, it doesn’t fit. Chip masks are another whole branch of IP law. As strange as it sounds, they are a bit like two sides of the same coin.
- theGnuMe 4y ago
  Software alone is not patentable. You get around that by patenting a system.
  - pclmulqdq 4y ago
    That is the state of the law today, where software gets copyrighted and can't be patented, but the debate about this is more about what ought to be the case.
    - theGnuMe 4y ago
      Good luck changing it!
smeagull 4y ago
It would be good if songs weren't copyrightable. Going back to having music as a part of culture would be nice.
hakre 4y ago
software works are normally subject to copyright without much further ado. database works are more commonly subject to rights _similar_ to copyright, but often a class of work in its own right.
- brookst 4y ago
  The US has for IP protections: copyright, patent, trademark, trade secret. There is no “similar to” copyright. Databases can be copyrightable. Not all are, but to the extent IP protection extends to databases it will virtually always be copyright, with maybe an occasional trade secret (which is almost the opposite of copyright)
randombits0 4y ago
While not so in other jurisdictions, databases are not copyrightable in the US. That was true when I last read Groklaw at least.
- shagie 4y ago
  Sweat of the brow (any work you do is copyrightable) https://en.wikipedia.org/wiki/Sweat_of_the_brow https://en.wikipedia.org/wiki/Sweat_of_the_brow vs. "Original work of authorship" https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St... (in particular the comparison section https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States#Compilations_of_facts_and_the_sweat_of_the_brow_doctrine https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St... ) The court case that set this difference down was Feist Publications, Inc., v. Rural Telephone Service Co. https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._R....
pmoriarty 4y ago
"if databases are copyrightable because they represent curation, then software must be too." Circling back around to creative works, the process of making art is also one of curation, as had been amply demonstrated over 100 years ago by the Readymades of Marcel Duchamp.[1] The curation involved in prompt selection and selection of which AI-generated works/images to use should therefore be just as copyrightable as databases, if all that copyright demands is curation. [1] - https://en.m.wikipedia.org/wiki/Readymades_of_Marcel_Duchamp https://en.m.wikipedia.org/wiki/Readymades_of_Marcel_Duchamp
- Riverheart 4y ago
  I'll just go ahead and say Readymades aren't art and express my belief that the artistic community will survive the copyright loss of loosely arranged furniture so we can avoid justifying the current state of affairs with avante garde silliness. John Cage made a musical piece 4'33 which is 4 minutes and 33 seconds of silence which has as much to do with music as Readymades do with art. His other works include curated noises such as buzzing blenders, falling objects, and street traffic. The only art is the act of convincing someone these things are art or deserving of copyright.
  - pmoriarty 4y ago
    I've yet to find a better definition of art than that of Andy Warhol, who said "art is what you can get away with." Considering that both Duchamp and Cage got away with convincing the world that their work is art, it is.
    - sethrin 4y ago
      To the degree that I've been able to verify, Warhol borrowed that one from Marshall McLuhan.
  - andybak 4y ago
    John Cage also wrote some genuinely beautiful music and was a sincere and thoughtful artist. It just needs to said that he wasn't a merely a "gimmick" man.

layer8 4y ago

We speak of software design for a reason. Arguably, anything involving substantial design work is copyrightable. Buildings, for example, are copyrightable, even when they only exist as architectural documents or as models. Software is rather similar.