District Court Decision: Is software copyright unconstitutional?
The US District Court for the Northern District of California dismissed a claim for declaration that copyright cannot be applied to source code. The plaintiff Aharonian argued that source codes consists of algorithms, which are "ideas", "processes" and "concepts", which were outside the scope of existing US copyright law, being part of patent law; that in any event these terms are too vague and as such unconstitional under the Due Process provision of the US Constitution; and that Congress had not properly added source code to the works protected by copyright.
The decision first includes an interesting analysis for all activists - the extent to which Aharonian did in fact suffer a relevant injury as a result of the legislation, such that he had standing to bring the action. After analysis of Eldred v Ashcroft and other cases, it was held that here, because Aharonian wished to include source code the subject of copyright in what can be termed an IP clearance business, there was standing. However, this would not always be so - and would not be so if there was "a mere desire to copy".
The second question was whether this claim was an invitation to review copyright legislation per se - "legislate from the bench". However, as a declaration was sought, rather than development of new standards to take the place of existing ones, the court considered that such judicial legislation would not be necessary. An interesting avenue for future cases?
The court was concerned in this regard, however, at the invitation to assess the relationship between copyright and patent, particularly given the general nature of the claim; and at what it considered a misunderstanding of copyright, source code and patent. It considered the manner of writing source code involved a choice between, and expression of, ideas which could lead to an infringement of copyright- and that this was so, even if the underlying ideas were patentable. Further, independent derivation of identical source code would not infringe copyright, although it may infringe a patent. In any event, given the general nature of the challenge the court would not consider this question.
Regarding a declaration as to the unconsitutional vagueness of key copyright terms, the court noted the argument to be that these terms should have a special meaning in terms of copyright, and that Congress did not provide such meaning, leaving unconstitutional powers to courts in this regard. The court rejected this, finding that some judicial interpretation of terms is "a bedrock assumption of our common law system". Secondly, not surprisingly in the context of a constitutional challenge, the court noted the finding in Eldred v Ashcroft that copyright works in tandem with the First Amendment right to free expression. Thirdly, the court was "unwilling and unable" to ignore settled law that copyright law properly applies to software - setting up the ground for a future court?
All in all an interesting analysis, not entirely surprising, and a reminder of the number of legal hurdles which must be cleared before there could be any likelihood of, say, the Supreme Court considering this question or a similar one. Will it go further?
The decision first includes an interesting analysis for all activists - the extent to which Aharonian did in fact suffer a relevant injury as a result of the legislation, such that he had standing to bring the action. After analysis of Eldred v Ashcroft and other cases, it was held that here, because Aharonian wished to include source code the subject of copyright in what can be termed an IP clearance business, there was standing. However, this would not always be so - and would not be so if there was "a mere desire to copy".
The second question was whether this claim was an invitation to review copyright legislation per se - "legislate from the bench". However, as a declaration was sought, rather than development of new standards to take the place of existing ones, the court considered that such judicial legislation would not be necessary. An interesting avenue for future cases?
The court was concerned in this regard, however, at the invitation to assess the relationship between copyright and patent, particularly given the general nature of the claim; and at what it considered a misunderstanding of copyright, source code and patent. It considered the manner of writing source code involved a choice between, and expression of, ideas which could lead to an infringement of copyright- and that this was so, even if the underlying ideas were patentable. Further, independent derivation of identical source code would not infringe copyright, although it may infringe a patent. In any event, given the general nature of the challenge the court would not consider this question.
Regarding a declaration as to the unconsitutional vagueness of key copyright terms, the court noted the argument to be that these terms should have a special meaning in terms of copyright, and that Congress did not provide such meaning, leaving unconstitutional powers to courts in this regard. The court rejected this, finding that some judicial interpretation of terms is "a bedrock assumption of our common law system". Secondly, not surprisingly in the context of a constitutional challenge, the court noted the finding in Eldred v Ashcroft that copyright works in tandem with the First Amendment right to free expression. Thirdly, the court was "unwilling and unable" to ignore settled law that copyright law properly applies to software - setting up the ground for a future court?
All in all an interesting analysis, not entirely surprising, and a reminder of the number of legal hurdles which must be cleared before there could be any likelihood of, say, the Supreme Court considering this question or a similar one. Will it go further?
posted by Dr Abbe Brown at 10:28 am
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