%% fsi.htx - this is an *HtX* file
%% (C) 1997 Trustees of Indiana University
%% Author: Gregory D. Weber (gdweber@indiana.edu)
%% Date: July 28, 1997

%\documentstyle{fmmccx}
\documentclass[12pt,twoside]{article}
\usepackage{htx}

\me{rms@cs.oberlin.edu}
\seticondir{../../icons/}
\begin{document}
\docheader{Introduction to Computing}{11}
{Intellectual Property Rights for Computer Programs and Data}

\begin{prereqs}
\item Understand most or all of the terms word processing,
spreadsheet, program, algorithm, menu, display, window.
\end{prereqs}

\begin{goallist}
\item Develop ethical sensitivity to the problem of software copying.
\item Understand the legal issues involved in copyright of
user interfaces and software patents.
\end{goallist}

\section{A Dialog}
\parskip 2ex
(Norm and Holly are at Holly's house, where Holly has just been showing
Norm her new word processing program.)
 
{\bf Norm:} So you're really in love with the SuperSoft Millenium word 
processor, Holly?
 
{\bf Holly:} Oh, absolutely, Norm!  It's just wonderful!
 
{\bf Norm:} I think it could be useful to me, too.
What did it cost?
 
{\bf Holly:} Four hundred ninety-nine dollars.
 
{\bf Norm:} Oh.  If it were a dollar more it would be way beyond my budget!
 
{\bf Holly:} No problem!  Here, I'll make a copy for you.  
I just need to find a blank disk.  Here's one!
 
{\bf Norm:} No, thanks, Holly---please don't.
 
{\bf Holly:} Why not?
 
{\bf Norm:} Because that's copyrighted software.
 
{\bf Holly:} So?  
 
{\bf Norm:} You know what copyright is.  Books, films, works of art---they're
usually protected by copyright.  It's illegal for anybody to
make copies of the work without the copyright owner's permission.
Software like SuperSoft Millenium is protected in the same way.
 
{\bf Holly:} Aw, c'm'on, Norm---who's going to know it if we just make 
one little copy?  
 
{\bf Norm:} I'm not worried about going to jail.  But it wouldn't be right.
And you know we can't be happy unless we do the right thing.
 
{\bf Holly:} Why wouldn't it be right?  And what's that got to do with
being happy?
 
{\bf Norm:} It wouldn't be right because it would be acting contrary to
human nature.  And we can't be happy unless we act according to human
nature.
 
{\bf Holly:} I don't understand what you mean by ``acting according to
human nature.''  
 
{\bf Norm:} Well, would you agree that we're social animals---that sociality
is part of human nature?

{\bf Holly:} Sure, that's right.  There may have been a few ``wild children''
who grew up without any human contact, but they're definitely not
normal.  Even Mowgli, in the story, grew up with a wolf family.
He wasn't all alone.
 
{\bf Norm:} But isn't it also part of our nature
that we're individuals, unlike bees and ants?
 
{\bf Holly:} What do you mean?
 
{\bf Norm:} Social insects act for the good of the hive.
A bee, for example, will sting an enemy to protect the hive,
even though it rips its own guts out and dies from the stinging.
It doesn't have any conception of individual self-interest.
But human beings act to achieve their own personal well-being,
not just the well-being of the society they belong to.
To be happy, we have to find a proper balance between the common good and
the individual good.  Nobody who's entirely self-centered can be
happy---but neither can anyone who's not concerned for his own
welfare.  

For example, we want to work at an occupation that does
good for our community, but we'd be unwilling to work
without pay.  Likewise, we'd like to
have good things for ourselves, but we wouldn't want to steal them.
All of this is entirely reasonable, and it's the way that
we have to be happy because of
this human nature that we have, which is both social and
individual.
 
{\bf Holly:} Okay, I agree with that.
 
{\bf Norm:} If you agree with that, would you also agree that it's a
consequence of this human nature that we must justly
reward those who provide us with goods?
 
{\bf Holly:} Oh, I get it!
Because of the individual side of the nature of those who provide the
goods---they don't want to spend their whole lives giving good
things to others and getting nothing in return.  And because of
the social side of the nature of those who receive the goods---they
don't want to be parasites on society, receiving, but giving nothing
in return.    
 
But what's this got to do with copying software?
I mean, it's not as though we'd be {\em stealing} anything.
 
{\bf Norm:} Yes, we would be stealing.
 
{\bf Holly:} How can that be?  If I steal a bicycle, I'm depriving
the owner of that bike, but if I copy a piece of software,
doesn't the owner still have it?  I mean, the copyright owner
has the original of the copied work, right, and I haven't exactly 
taken it away from him.  So how is it stealing?
 
{\bf Norm:} Well, what if you sneak into a theater or a ball game
without buying a ticket?  That would be stealing, wouldn't it?
 
{\bf Holly:} Of course!
 
{\bf Norm:} But what would you have stolen, actually?  What would you
have deprived the owner of?  A view of the game?  The sounds and
sights of the show?
 
{\bf Holly:} No.  The owner still has those, if she ever had them.
What the owner's deprived of, in that case, would be the income
from the ticket.
 
{\bf Norm:} Exactly!  It's the compensation or reward that she should have
for creating the show.  Remember, you wouldn't want to work without
pay.  Neither do the folks who write software.
 
{\bf Holly:} I guess I wouldn't want to deprive a mother of the bread
she needs to support her children.  But what about that Bill Doors,
the owner of SuperSoft?  Isn't he one of the richest men in the
country?  What's a few hundred dollars more or less to him?
 
{\bf Norm:} No doubt Bill Doors has too much money.  But I'm sure that
if SuperSoft earned even more money, they would hire more mothers
and fathers (and people without children too) to write more programs.  
 
{\bf Holly:} But, Norm, do people only write software for money?
Don't some programmers write programs just because they love to do it,
and then give them away for free?
 
{\bf Norm:} That's true, Holly, and we have to distinguish between three kinds
of program, at the money end.
 
{\bf Holly:} What are they?
 
{\bf Norm:} First, there's commercial software, like SuperSoft Millenium.
You pay for the package up front, before you open it.  The second kind
is {\em shareware}.  Shareware is usually made available on bulletin boards
or on the Internet, where people can freely copy it.  People can also copy
it from the disks of other people who already have a copy.  
After they try it out,
if they like the program enough to keep it, they're expected to pay a fee
to the authors.  Unlike commercial software companies, the authors
of shareware don't try to prosecute those who don't pay; instead, they rely
on the user's conscience.  The third kind,
{\em freeware}, is also called {\em public domain} software.
Freeware is free software.  It's distributed
in the same ways as shareware, only without money.  Sometimes freeware comes
with a copyright notice---not so the author can require you to pay money,
but so that he can license it in a way that makes it {\em illegal} for
others to redistribute it for money.
 
{\bf Holly:} Wait a minute.  If there's all of this freeware out there,
do we really need to pay software developers to encourage them to 
make software?
 
{\bf Norm:} What do you think?  Of the software you use every day,
the software that's most important to you, which programs are commercially
developed, and which are freeware?
 
{\bf Holly:} Hmm, there's OakTree Ledger and of course SuperSoft Millenium.
Also MudFlats PhotoFinish and Mediterranean Presentations.
That's all commercial.  Then on the freeware side, there's the Star Trek
game---that's fun but not important.  Oh, yeah, my World Wide Web
browser is freeware, too.  That's important, as well as fun.
 
{\bf Norm:} Don't forget your operating system.
 
{\bf Holly:} Won-Doze XCV!  That's a lot of weight on the commercial 
side.
 
{\bf Norm:} All of that commercial software
wouldn't exist without the profit incentive.
Unfortunately, copyright protection is not very effective.
According to the Business Software Alliance, of the software
sold in the United States, about 40\% of the packages are illegal copies;
in Japan and Germany, 75\% are illegal, and in China, Korea, Taiwan,
Spain, and Switzerland, 90\% are illegal.  The countries where the
worst copying occurs are definitely {\em not} known for their
flourishing domestic software industries.
 
{\bf Holly:} No wonder!  
\parskip 1ex
\subsection{Summary}
 
We should not make use of the labors of others without rewarding
them, unless they give us permission to do so.  
Our human nature as individual-but-social requires that those who
produce social goods be adequately rewarded.  Computer software and
documents, as well as literary and artistic works in more traditional
media such as paper, are social goods (if they are good at all),
because they can easily be copied and widely distributed.  These 
works are protected by copyrights because our government recognizes 
the need to reward their creators and so encourage them to continue
creating such good works.  By guaranteeing to those who created a work
the exclusive right to produce it---with the implied opportunity to
sell it to make a profit---the law encourages workers and their
employers to produce works that people will value enough to pay
money for.  If we break the copyright law, we are withdrawing the
incentive to produce works of this kind---including the work which,
by the very act of copying, we show that we value.
 

\section[A few other facts]{A few other facts about copyright}
\begin{enumerate}
\item Copyright obviously applies to electronic documents as well as 
programs---documents such as those found on the World Wide Web,
on news groups, and email messages.  And not only textual documents
but also pictures, sounds, ``movies,'' etc.
 
\item No special action is required to copyright a work.  In particular,
the author doesn't have to put a copyright notice on it or send a copy
to the Library of Congress; it's automatically copyrighted.  The copyright
notice just makes it more obvious that the work is protected.
 
\item The prohibition of copying is not absolute.  Obviously, the copyright
owner can give you explicit permission to copy the work.  Permission can
also be given implicitly (e.g., when you write a letter to the editor of a
newspaper, it's understood that the newspaper may publish it).  Under certain
conditions, copying is also permitted under the ``fair use'' doctrine of the
copyright law.  The intention of copyright is to give the owner what is
reasonable, not absolute control.
\end{enumerate}

\section[Copyright of UIs]{Copyright of User Interfaces}

Copyright applies to the form of expression, not to the ideas expressed.
When applied to programs, this means that the source and object code
(i.e., program instructions written by the programmer)
are protected by copyright, but not the algorithms
which the code expresses.  What about other expressive aspects of 
the program, such as the menus, commands, keystrokes, etc., by which
the user controls the program, and the displays, windows, etc., by which
the program presents information to the user?  These aspects of a program
are called the {\em  user interface}---the place where the user and the
program interact.  The ``look and feel'' of a program derives from its
user interface.
 
\begin{quest}
What is the user interface of an automobile?

(Answer on page~\pageref{qanda})
\end{quest}
 
Can a user interface, or the look and feel of a program, be protected
by copyright?  Copyright law has been in a very confusing, unsettled 
state regarding this issue.

Prior to about 1990, software developers felt free to copy the
user interface of other programs (but not, of course, the programs' code).
In 1990, Lotus Development Corporation began winning lawsuits against
Paperback Software and Borland International, Inc., for copying the
user interface of its spreadsheet program, Lotus 1-2-3.  Apple Computer,
Xerox Corporation, and other companies have filed similar suits.

Some companies even claim to have copyrighted programming languages.
In the Borland case, the U. S. District Court of Massachusetts ruled
that the hierarchy of menus used in Lotus 1-2-3's user interface was
{\em protectable expression} under the copyright law, because Borland could
have renamed the menu commands---for example, by changing ``Quit'' to ``Exit''
and ``Copy'' to ``Duplicate.''  In March, 1995, the U. S. Appeals Court
(First Circuit) reversed this decision, holding that the menu command
hierarchy is a {\em method of operating} the program; methods of operation
are specifically excluded from copyright protection, under Section 102 (b)
of the United States copyright law.  (The Appeals Court did not rule on whether
other aspects of the user interface, such as the screen displays and
the help prompts, were copyrightable.)  Lotus appealed the case to the
Supreme Court, which recently (Jan/Feb '96) upheld the decision of the 
Appeals Court; i.e., Lotus lost, the Lotus menu command hierarchy
is not copyrightable.
 
In our opinion, the decision made by the Appeals Court and the Supreme Court
was wise: any monopoly
(such as copyright) over a method of operation could have horrible
consequences for users.  Imagine, for example, that the first car 
manufacturer had a copyright over the automobile user interface that
we're accustomed to today.  Then other car manufacturers would either
have to license the interface (if the first manufacturer would let them!)
or invent a different interface.  This would probably result in the
development of dozens of incompatible interfaces for operating 
automobiles---some with steering wheels, some with sticks to 
control direction; some with brake pedals, some with hand levers
for brakes.  Imagine the confusion you would have if you tried to
drive a different kind of car!  Imagine the confusion there would be
if every typewriter manufacturer used a different arrangement of
the keyboard---which is nothing more than a menu of letters!

The situation is similar for computer users.  If a new and better
method of operating a computer program can be thought up, then that
method should be available for all programs.  Of course, the developer
of the method should be adequately rewarded, but usually these rewards
come from the sale of the first program to have this method of operation.
Copyright law must balance the objectives of encouraging innovation,
preserving competition, and rewarding the labor of authors; but the
good of the public must come first, and this seems to require the
free copying of methods of operation.  On the other hand, some aspects
of user interfaces, such as the phrasing of a help message and the 
layout of information displays, may be expressive, not operational,
and as such would deserve copyright protection.  (Note that the
Appeals Court made no decision about any non-operational aspects
of user interfaces.)

\section[Patents]{Patenting Computer Programs}

Copyright is considered to be a form of ``intellectual
property right,'' a right of ownership over something of an
intellectual nature---in this case, a certain form of
expression.

The law recognizes other forms of intellectual property right,
including trademarks, which apply to names of products or
services, and patents, which apply to inventions.
 
Under U. S. law, in order to be patentable, an invention
must fall under one of the following
four categories: ``process, machine, manufacture, or composition
of matter.''  Inventions falling in these categories are 
said to have  ``statutory'' or ``patentable subject matter.''

In addition, the invention must be novel,
useful, and non-obvious.
Patents require an application to the U. S. Patent and Trademark
Office (USPTO).

The application process is expensive, typically costing
several thousands of dollars in attorney's fees.
If the patent is granted, it gives the inventor an exclusive right
to the invention, lasting for seventeen years,
even if somebody else independently reinvents the same
thing. 
 
What about patenting computer programs or algorithms?
Traditionally, mathematical algorithms and laws of nature
could not be patented.  To patent an algorithm or law of
nature would be to restrict the freedom of thought,
and would restrain inventors excessively (since almost
all inventions depend on laws of nature).

However, an {\em application} of a natural law could be patentable.
For example, you could not patent the theory of general
relativity, but you could patent a space ship that uses
relativity to go faster than light, if such a thing were
possible.

However, in Diamond v. Diehr (1981), the 
Supreme Court
allowed a patent in which an algorithm was used by a computer
to control a rubber-molding press,
ruling that the presence of a computer algorithm in an otherwise
patentable invention does not make that invention unpatentable.
 
Since Diamond v. Diehr, the USPTO has allowed 
many patents for computer programs and algorithms
(``software patents'').

Many computer programmers deplore this tendency.
First, they argue that patent examiners were insufficiently trained
in computer science and consequently gave many software patents for
techniques that were too obvious.
The fact that many software techniques are independently
reinvented supports the claim that most of them are
too obvious to deserve patent protection.

However, even if
 this is true, the USPTO could remedy the problem
by hiring better qualified examiners for software patents.
Mistakes in judgment do not argue a mistaken policy.
Second, programmers argue that software patents are not needed
to stimulate invention in the software industry, 
and they may even hinder it because many small software
development shops would not be able to afford the expense
of searching for a prior patent on a technique they want to use,
and may be deterred by the threat of lawsuits for patent
infringement.   Many programs contain hundreds of techniques,
each of which is a possible patent infringement if software
patents are allowed, so the danger is real.
 
The Supreme Court has not ruled on whether computer algorithms
are patentable subject matter, and is unwilling to do so,
since a proper decision requires the broad investigative powers
of Congress to hold hearings on the matter.
However, the Court has held that ``an algorithm,
or mathematical formula, is like a law of nature, which cannot be 
the subject of a patent.'' 
(Diamond v. Diehr)

Yet the USPTO has taken the position that
the non-patentability of algorithms
``applies only to {\em mathematical} algorithms
since any process is an `algorithm' in the sense that it is a
step-by-step procedure to arrive at a given result.''
(Barrett, 1989, emphasis added)
We find this position almost incomprehensible,
for two reasons.

First, ``processes'' (the kind that were traditionally
patentable) transformed physical matter.
Computer processes, however, are directed by programs
toward the transformation of information, not matter.
(It is true that matter is incidentally transformed,
since the information is encoded in a material form;
however, it is the information, not the matter, that counts.)
Processes of {\em thinking}---mental steps---have long
been recognized as unpatentable subject matter,
but it is hard to find a distinction between
``transoforming information'' and ``thinking.''

Second, the USPTO appears to be making a distinction
between mathematical algorithms, which are non-patentable,
and computer algorithms, which (it holds) are patentable.
The terms ``mathematical algorithm'' and ``computer algorithm''
are not strictly synonymous.  For example, a person can
use the algorithm for long division without the aid of a
computer.  So a mathematical algorithm is not necessarily
a computer algorithm.

But isn't a computer algorithm necessarily also a mathematical
algorithm?

Computer science grew largely out of mathematics, and it is hard
to see any difference between computer algorithms and
mathematical algorithms.

The only difference we can imagine is between mathematical 
algorithms dealing with numbers and algorithms for non-numerical
problems.  But to suppose that non-numerical problems are 
non-mathematical is to take an extremely narrow view of mathematics.
For example, boolean logic and geometry are branches of mathematics,
yet they do not deal with numbers.  

Computer algorithms also deal with text
(e.g., word processing),
which seems to be a non-numerical problem,
but text is represented in the computer in the form of
numerical codes.

In fact, {\em all} information in the computer is represented
by binary numbers.
The USPTO appears to be
making an artificial distinction between mathematical algorithms
and supposedly non-mathematical computer algorithms.
That distinction has no basis in reality.

If one cannot patent an algorithm, can one patent the 
{\em use of a computer} to carry out the algorithm?  
This would be either a patent on a process or on a machine, 
so it seems to qualify as patentable subject matter.
However, a patentable invention must also be
non-obvious.  

Given any newly discovered algorithm, the decision to use
a computer to ``run'' the algorithm is now a matter of routine.
The use of a computer to carry out an algorithm
may have been non-obvious in the 1940's, but it is 
very, very, very obvious by now.

The best argument against software patents appears to be the
fact that the software industry has flourished for many years
{\em without} the ``protection'' of patents.  

Recently, a number of large companies have been trying
to get as many software patents as possible.
This proliferation of software patents may cause
smaller software developers to go bust.
To defend against a lawsuit for patent infringement,
even where the patent is obviously invalid,
may cost hundreds of thousands of dollars.
The industry doesn't need patent protection;
the most innovative (typically smaller) software
companies will almost certainly be hurt by it.
The purpose of the patent law is to stimulate invention,
not to wither it up.

\section[Exercises]{Exercises/Problems for Discussion}

\begin{enumerate}
\item  A college's director of computing services pays for ten copies of a
program which she expects will be used by at most ten persons at any one time,
but installs the program on one hundred computers.  Comment on the moral and
legal propriety.
 
\item  Richard Stallman believes that the Golden Rule obliges him to give away
the software he finds to be useful.  The law won't allow him to do this with
software copyrighted by others, so he and his associates write similar software
themselves and then give it away.  Read Stallman's
``The GNU Manifesto'' (http://www.gnu.ai.mit.edu/gnu/manifesto.html)
and comment on Stallman's belief and practice.
 
Also see Stallman's \zlink{http://www.gnu.ai.mit.edu/copyleft/copyleft.html}
{``What Is Copyleft?''} with link to the GNU General Public License,
and \zlink{http://sugwww.uni-paderborn.de/Docs/fsf1.html}{``Why
Software Should Not Have Owners''}

\end{enumerate}

\section{Philosphical Note}

The way we think of human nature has a powerful impact on what we think
is right and wrong and what we think is a happy life.  For example,
if we believe that human nature is basically selfless, as Marx did,
then we'll probably favor some form of socialism, in which there 
is no profit incentive to produce high-quality software.  But we know
that socialism doesn't work, because human nature is not entirely
selfless.  Marx grasped only one side of human nature, the
social side; he failed to see the individualistic side.  The English
philosopher Thomas Hobbes (1588--1679) fell into the opposite error.
He saw human nature as basically individualistic and selfish. 
According to Hobbes, civil society is a convenient arrangement
which we've invented to prevent ourselves from killing each other
off, but it's not natural for human beings to live in society or to
restrain their egoistic impulses.  It's natural for each individual
to attack and plunder his neighbors, to take software and other goods
from them by cunning or by force.  It's hard to see how anyone,
on such a conception of human nature, could be happy living under
the restraints of civil society.  Fortunately, that conception is wrong.

Norm's ethical theory, which makes a strong connection between
moral values, human happiness, and human nature, is called
``ethical naturalism'' or sometimes ``natural law'' theory.
Its roots are in the philosophies of Plato and Aristotle.
 
\subsection[Optional Exercises]
{Optional Philosophical Exercises/Problems for Discussion}
 
\begin{enumerate}
\item Ethical naturalism isn't the only ethical theory that philosophers
have come up with.  Two others are Kantianism and utilitarianism.
According to Immanuel Kant (1724--1804), we should act only according
to those maxims (principles) which we can will to be universally
practiced.  For example, I should not tell a lie to avoid some
embarrassment, because the maxim ``It is okay to tell a lie to
avoid embarrassment'' is one that I cannot wish everyone would
follow.  Comment on violating copyright law from the Kantian
perspective.
 
\item According to the utilitarian theory, morally right actions are
those that maximize the total utility, or balance of pleasure over
pain, for the entire community.  For example, murder would be
wrong because the pain inflicted on the victim and those who loved
him outweighs whatever pleasure the killer gets.  
Comment on violating copyright law from the utilitarian perspective.
\end{enumerate}

\section{References}

\zlink{http://www.lpf.org/}{The League for Programming Freedom} has two
position papers, ``Against User Interface Copyright'' 
and ``Against Software Patents,'' and other information. 

Norm's figures about illegally copied software are taken from
Tom Forester and Perry Morrison, {\em  Computer Ethics}, 
MIT Press, second edition, 1994, p. 52.

The classical source for Kant's ethical theory is his {\em Foundations
of the Metaphysics of Morals}, also translated with a variety of other 
titles.  It is a very small book, but not easy reading.
Kant's {\em Lectures on Ethics}
(Harper Torchbacks, 1963) is a more readable introduction to his ethical
thought; it is a reconstruction of his lectures based on notes taken by
three students.

John Stuart Mill's {\em Utilitarianism} is an excellent introduction
to utilitarian ethics.

Aristotle's major ethical work was the {\em Nicomachean Ethics}. 
Plato wrote many dialogs on ethical problems;
one of the most famous and systematic, from the point of view
of relating moral values to human nature, is the {\em Republic}.

Other references:

Barrett, Lee E. (1989).  
\zlink{http://www.lpf.org/Patents/papers/barrett.paper}
{Untitled paper} on the patentability of
mathematical algorithms and computer programs.

Davis, Randall, Pamela Samuelson, Mitchell Kapor, and Jerome Reichman (1996).
``A New View of Intellectual Property and Software,''
{\em Communications of the ACM,} vol. 39, no. 3, March 1996, pp. 21-30.

Diamond v. Diehr, 450 U.S. 175 (1981).

Hobbes, Thomas (1651).  Leviathan.

Johnson, Deborah G. (1985). {\em Computer Ethics},  Prentice-Hall.

\zlink{http://www.lpf.org/Copyright/lotus-v-borland.html}{Lotus
v. Borland, (1995).} 

\section{Answer to Question}
\label{qanda}

The user interface includes the steering wheel, accelerator,
brake pedal, gear selector, speedometer, fuel gauge, and other
devices which the driver uses to control the automobile.

\end{document}

