[Upd-discuss] a longer term strategy for promoting thepublicdomain?

[Prof. Mickey Davis]

Patents do not cover ideas, functional or otherwise. They cover the applicarion of an idea. Just as copyright covers not the idea but its expression so too patents cover not the idea but its application. They are both of course outdated concepts.
Mickey
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Prof. Michael H. Davis Cleveland State Univ. College of Law 1801 Euclid Ave.
Cleveland, OH 44115-2214
(mailing address: 2121 Euclid Ave. LB 234)
Professor of Law 
E-Mail: michael.davis@law.csuohio.edu
_____________________________________________________________
Patent Attorney Admitted to Practice Before the US Patent and Trademark Office Reg. No. 45,863
 
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In response to:

Dear Becky,

> I've heard both Larry Lessig and Brewster Kahle use the argument that
> patents (on innovations) and copyrights (on artistic works) are similar
> legal mechanisms which allow people a limited monopoly over their ideas
> to give them an incentive to come up with them in the first place. This
> leads on to the attractive argument that therefore, why are patent terms
> 14 years and copyright terms life plus 70?

This is not quite true. Copyright does not cover "ideas" but the expression of them. However the expression of ideas is not as simple as literally the lines of the writing but also includes non-literal copying.

For example if I wrote a book called "George the Wizard" and plagiarised a plot line to J.K. Rowlings work in detail, she could still sue me even though I have not literally copied the work. I have copied her expression.
But she cannot own "a story whereby a boy magician goes to wizard school" since this would be owning the "idea" itself and pre-empting the thousands of other expressions that could also happen to use this idea. There is no concrete line between idea and expression but there is a point in the series of abstractions where the expression is no longer protected. (When it becomes too generalised)

With patents, the use of the "functional idea" itself is what is given protection. This is natural in the case of physical inventions, but when applied to software patent law ends up monopolising abstract ideas.
(Incidentally abstract ideas are not supposed to be patentable according to centuries of patent law- but of course they are when lawyers refuse to tell the truth about the nature of software.) Because software is information
(writings), it has been given legal protection as a literary work
(intellectual not industrial property) under international law, making the scope of protection narrower and only allowing the authors the right to their expression not the idea.

Patent Lawyers are now trying to re-write software as industrial achievement by highlighting words such as "process" and saying that copyright does not protect the "process". However if we think for a moment about processes,
there are many processes that are not patentable because they are abstract e.g. mental processes, methods of calculation (mathematical truths).

Also if you think about the sound that comes out of a CD player when you put a CD in it, the copyright protection pervades through the excluded "metho