Court Upholds Dual Patent/Copyright Protection for Software

Aharonian v. Gonzales (N.D.Cal. 2006).

Although he operates primarily through an e-mail list rather than through a website, Greg Aharonian is the honorary trailblazer for today’s intellectual property law blogs (including Patently-O).  He is also an activist.

In a lawsuit filed against the U.S. Government, Aharonian requested a declaratory judgment that copyright law cannot be applied to sourcecode.

Specifically, Aharonian hopes to build a powerful database of sourcecode to be used as a prior art repository — but does not want to be held liable for copyright infringement.  In a challenge to the statute, Aharonian argued that computer code is entirely made up of “algorithms” and “data structures,” both of which are uncopyrightable “ideas” or “processes” and additionally that the vague language of the Copyright Act is insufficient to support sourcecode copyrights. (And raised other arguments).

Standing: With any DJ action, there is often a question of standing. Here Aharonian was able to show that he was suffering a specific economic harm under the law (inability to build his database) and that economic harm, according to the court, was sufficient to establish standing.

This is not to say that all allegations of economic harm related to copyright law will be sufficient to meet the constitutional requirements for standing. For example, the mere assertion of a desire to copy, with no showing of an actual past or future business practice or actual economic benefit from copying, would not suffice. Here, however, plaintiff has an existing business which involves searching for potentially copyrighted prior art, and he has made a credible argument that incorporating (i.e. copying) such material into an automated search tool would result in additional profits.

Software as Math: The Aharonian machine will apparently transform computer code into a standardized logic framework and store that framework.  The court used that pont to avoid addressing the question head-on:

It would be unwise indeed for this court to make sweeping general pronouncements about the nature of software or the relationship between patent and copyright law, particularly where making such a pronouncement would have no clear effect on plaintiff’s ability to create his proposed database.

The court did take pains to distinguish patent and copyright cases — thus predicting their conclusion that both forms of protection are available for software:

A declaration that software consists entirely of “ideas”—data structures and algorithms—has no bearing on the applicability of copyright law to software source code, which, like all copyrightable material, is a particular written expression of ideas. . . . In sum, if plaintiff copies source code that is protected by copyright law, he infringes the copyright regardless of whether the ideas underlying the source code are patentable. Conversely, if plaintiff independently creates software that is functionally identical to other software, he does not infringe any copyright on the other software’s source code, even if his independently created source code is nearly identical to the copyrighted source code.

Vague Statute: On the issues of vagueness, the court essentially found that prior controlling precedent had interpreted the scope of the statute — leaving no room for the district court to hold otherwise.

Dismissed. The case is now on appeal.


  • Link: Website dedicated to the lawsuit.

5 thoughts on “Court Upholds Dual Patent/Copyright Protection for Software

  1. 5

    I invest untold amounts of money in my intellectual property and that alone should qualify a person to being given a legal monopoly on those works.I don’t mind people using my legally created software but if they make money on the software or similar I require a license to be agreed to or I can claim infringement, based on loss of profits, no matter how long it takes me to create profit on my own efforts if ever because social and ecomonic disadvantage is real and so if only rich corporations can develope ideas to profit than I suggest the corporations buy us all out of the software creating business.I’ll sell my 56 computer programs but not cheap.

  2. 3

    The use that Greg proposes here seems to be “fair use”. Also it would be of social and economic benefit to others, as well as himself.

    They stepped on some human rights laws, when they made the laws that make things easier for the RIAA. Maybe they should step on some sacred cow copyright laws, to make things easier for programmer citizens to comply with copyright law.

    Or is it all about protecting and facilitating monopoly and greed, no matter what the proposed use of copyrighted material. There is of course over a hundred years of monopoly and greed supporting law to overcome here, that keeps the lawyers employed, as well as overcoming the associated social and mental conditioning.

  3. 2

    The URL is to my article describing an approach
    to removing the adversarial relationship
    between patent holders and users of patent
    intellectual property.

    This is not a response to the article. I didn’t
    see how to email you.


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