Attorney to Ashcroft: Should Software be Copyrighted at All? No.

Greg Aharonian, consultant and patent activist has challenged the basis of registering software code for copyright protection in a pro se complaint for declaratory judgment filed in San Francisco District Court. He argues that the copyright laws of the United States were devised for creative works such as music literature, and screenplays and not for “utilitarian” items such as software code. Moreover, he argues that patent law adequately protects software code and should be the proper vehicle for such protection.

Expressly barring copyright registration for software code would have tremendous ramifications for the raging software piracy war. Namely the hurdles, costs, and complexity of filing a patent application are tremendous compared with the relatively quick and dirty copyright registration. In addition, while protection for copyright can last as long as 95 years compared with a mere 20 for patent. Currently, software manufacturers, including Microsoft employ a multi prong assault of copyright, patent and well "clickwrap" agreements to protect their software turf.

While, Aharonian argues that the current standards and enforcement mechanisms of software copyright infringement are a complete disaster, there are many voices in favor of maintaining the status quo established in the 60’s. Aharonian argues that software copyright runs afoul of due process in that it does not provide appropriate use boundaries, causing grief and confusion among industry players and courts.

I suspect that the court will sidestep the issue entirely on “standing” grounds. In other words, the court will argue that Aharonian has no basis himself to file the suit at all, because he was not ostensibly harmed by the copyright abuses he attacks. The complaint is available on Aharonian's site.

I believe this is the desired result given the fact I agree with Kent Dunlap, principal legal advisor to the Copyright Office's general counsel, who states "I think it is fair to say it is the primary means of protecting U.S.-based software." Removing this weapon from manufacturers' arsenals will prove disasterous in light of the unrelenting assault of piracy, the presence of many small and startup software companies, and the relatively burdensome patent process.

Aharonian has some very interesting positions and insights as to the use and boundaries of patent law in general:

http://www.patenting-art.com/

http://www.iplaw-quality.com/

Kaiser Wahab