hristo wrote:bob wrote:hristo wrote:bob wrote:hristo wrote:bob wrote:
Has Vas patented his new ideas? If not, there will never be a law suit because there is no infringement. Reverse-engineering infringement suits depend on the pre-existing patent to form the basis for the infringement. There is clearly no copyright issue if actual original code is not copied. In fact, US patent/copyright laws are very clear in what can be copyrighted and what has to be patented...
I don't believe that you are correct in the above.
I am certain that I am. I have to deal with copyright attorney stuff on a regular basis...
I deal with IP attorneys frequently and have been involved in IP cases. I would like to know if your attorneys claim that
the presence of source code is a mandatory requirement for copyright infringement. My attorneys have never said such thing and in fact I was asked to render an opinion on disassembled code without ever seeing the original source code. It is possible that your attorneys are better than mine and so I would love to know of a verdict (after all attorneys are bound by the judgments) that states that "source code similarity is the only way to assert copyright infringement in a software case".
The link I provided includes a number of cases where copyright infringement was asserted (and granted) without having anything to do with the original source code.
Yes. How can you copyright an "idea"? There is no copyright law to support that. That's where a patent comes into play. Otherwise what are you going to base a copyright claim on? Copyright _specifically_ applies to
something written and then copied and used by someone else. Most notably in literature, but also in media derived from such (movies, recordings, etc)...
Robert,
it seems that we haven't gotten the issue of 'idea' vs 'expression' separated sufficiently so as to avoid making arguments that are unfounded. (This is probably my fault -- not being clear enough)
I have put the objectionable text in bold [above] because it seems that this text leads to some erroneous conclusions.
Copyright, in its general form, is by no means constrained to "written material" only and this applies to computer software. The fact that your source code is translated into a binary representation doesn't remove the copyrights you held on the original code.
I hope I never implied otherwise. That would be identical to translating a book from English to German, for example. And it would be a copyright violation. But browsing through a book, to learn how the author delivers the story, and then using that is _not_ a copyright violation.
For an example, Clive Cussler starts his books in a time-travel back to the distant past, where some natural history event (A boat sinks, a bomber crashes at sea, etc) is carefully explained, adding some key detail that will be critical to plot development later. Then he time-shifts back to the present, and somehow works that ancient event into the tale to give the NUMA guys a way to thwart some global terror plan. Absolutely nothing would prevent me from using that same sort of "twist" to write my own books. You can't copyright a "style", just the actual document itself.
That was my point with computer software. You naturally hold the copyright on the source you write, and on any translation made from it which would include the executable. But you don't hold any copyright on the ideas included therein because they are not subject to copyright. For that, you have to resort to a patent. And the patent office is loathe to grant patents on software algorithms because they are essentially unenforcable... I can't patent a sort algorithm, even if I could find one better than N log(N) in speed.
That was the point I was making. And disassembling a program to see how it works does not violate anything. Copying the thing and claiming it as your own won't fly. But disassembling, learning how the thing works, and then using that to write your own is perfectly safe...
The fact that someone can go through another translation and convert the binary back into some other format [presumably a higher level language that can be read more easily] doesn't remove your copyrights (with respect to expression) either. If someone was to use this translated code without asking your permission to do so and without you granting such permission, explicitly, then said person is committing a copyright infringement against you -- without ever copying the original code that you wrote. In one of the examples (from the link earlier) the defendant used parts of the binary code with some considerable modifications and was found to be infringing on copyrights (no source code was involved), but the example went even further and discussed the copyright infringement that can be a result from augmenting the behavior of the application through external means -- without actually copying anything at all.
I don't disagree. But the basic premise in the above is that it was compiled, then disassembled, and the disassembled program was used as is. That does not seem to be the circumstance with Strelka unless there has been something claimed that I have missed. "Containing significant similarities" doesn't mean a thing.
There are many criteria that come into play, and I certainly don't understand or know all of them, when deciding on a copyright infringement, but I'm certain that "literal copying of source code" is not a requirement in the case of software.
Additionally, parts of your program can be protected by the very nature of their creation, for instance a table of values (or small poem) is embedded in your application. If this table cannot be easily derived from first principles and if the infringing party cannot show how this table was derived then you have an infringement. (considering that they couldn't have copied this table of values from somewhere else, it doesn't matter how easy it is to create the table if the can be created...
Now you are hitting on the essence of why we don't allow copyright to apply to a "program" in general, but specifically to its source and translated derivatives.
What set of values can't be produced by trial and error, when we are talking about any table that might appear in a chess program? It is easy enough to write a simple algorithm that can produce any set of parameters you want, totally by brute force... So it all goes back to proving that I stole your source or executable and used it in whole or in part, and that has proven to be _very_ difficult in all the copyright infringement cases I have followed over the years...
For example, the large table of "magic" numbers I use. Came from Pradu. They appear in several programs. And we all could have come up with the same numbers ourselves, just like we _could_ generate our own tablebases, but the effort would be wasted since it has already been done once.
If the infringing party admits to have disassembled your work and then literal or non-literal, as a result of translation (and consequent obfuscation), parts of the original are found in the derivative then you have very good chance of winning. (Notice that nowhere in this process one has to argue or defend the concept of 'idea')
All you are after is to show that your original work was used inappropriately. This is, usually, much easier to do when your work contains identifiable unique parts.
However, that is the sticky point as I mentioned. For example, old versions of Crafty used rotated bitmaps, with large tables of constants to generate moves. If someone copied those, I would have no chance to get relief under copyright law because the numbers are not unique (no number on a computer is ever unique) since they can be generated by an algorithm, which can never be copyrighted or patented...
I hope this explains my opinion without the nagging issue of "ideas are not protectable".
With respect to using a defense where the defendant attempts to avoid responsibility purely based on the claim that the plaintiff might have also done something wrong: this would, IMO, probably lead to faster judgment against the defendant and then another case might be brought up. It is very unlikely that a judge would allow a counter suit where the defendant is not the actual party that was somehow hurt by the plaintiff. For instance: A claims that B did something wrong against A. In court B claims that A might have done something wrong against C and that therefore what B has done to A is 'OK'. Judge, rolls his eye and bangs the gavel on B's head.

(surely, it doesn't have to be that way, but it is very likely)
Regards,
Hristo
I have seen multiple cases where the judge did say "your claim has no merit, the injured party was the orignal author.." One of these was related to Xerox and windows, although I don't remember the specifics...