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Andrew Katz is partner and head of the IT/IP team at Moorcrofts LLP, a boutique law firm based in the Thames Valley providing corporate and commercial advice to knowledge-based industries. Andrew qualified as a barrister and requalified (and now practises) as a solicitor. He financed his way through bar school by jobbing as a (fairly incompetent) programmer (in turbo pascal). He now specialises in free and open source software law and has written and lectured widely. He is a founder editor of the International Free and Open Source Software Law Review, a fellow of the Free Software Foundation Europe and advises businesses and communities on free and open source licensing and strategy worldwide. He is slightly obsessive about live music. These are his opinions, and not those of his firm.

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Copyright case spells trouble for developers

Is the idea/expression dichotomy no longer honoured in copyright law?

Published 14:50, 27 January 12

Tags: copyright, developer, it business, law, patent

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There's been a fair amount of coverage of a worrying judgement in a copyright case involving a couple of pictures of a red Routemaster crossing Westminster bridge. A good one is here (HT to Emily Goodhand for the link - @copyrightgirl on Twitter).

It's a core principle of copyright that it protects the expression of an idea only, not the underlying idea. So it's generally accepted that if you take a piece of software, have a group of engineers pore all over it see how it works, and create a functional specification, then get another group of engineers (who haven't been exposed to the code of the first piece) to write software to that specification, then the resulting new code will not infringe the copyright in the first: the specification amounts to the idea, which is not protectable by copyright* and the new code is a new expression of that idea. This is how Compaq reverse-engineered the original IBM BIOS.

Applying the same logic to this case, you'd think there was no clearer case of reverse engineering the expression into an idea (which can clearly be expressed as "picture of a Routemaster travelling south on Westminster Bridge, taken from the South end of the bridge from the East side of the bridge at a low-ish angle, with the Palace of Westminster in the background; the Routemaster coloured red, and the rest of the scene in monochrome, and the sky rendered in white"), and then taking a photo (and photoshopping accordingly) using that idea.

Applied to software, this is a dangerous precedent. It means that that the clean room rewrite is not quite as reliable route to infringement-free recreation as it once was, as it's no longer quite so safe to rely on the idea/expression dichotomy.

There are other troubling aspects - the fact that there was an effort to evoke the original photo has been given relevance. State of mind is supposed to be irrelevant to copying, as George Harrison found out to his cost when "My Sweet Lord" turned out to be too similar to "He's So Fine" by the Chiffons.

This was also a factor which was given weight in the equally worrying Australian case of Larrikin vs Men at Work. Two bars of the Kookaburra Song were used in Men at Work's Down Under and the judge considered not only the copying, but also that the tune evoked Australianness. Somehow this is something which enhances copyright protection.

It also leads to some bizarre consequences; if it's possible to infringe the photo by following my recipe, then surely the text of my recipe is also infringing, as an adaptation? Alternatively, if my recipe is not infringing, then how have I managed to cause someone to infringe copyright by providing them neither with the original work to copy, or an adaptation of the original work? Of course, if the text of my recipe is infringing, then it's no longer possible even to describe a copyright work without infringing copyright.

Let's hope this case is appealed.

* although, see the Advocate General's opinion I blogged about previously. It leaves open the door to arguing that interoperability data can be so detailed as to amount as copying. I maintain that means that it can be so detailed as to amount to copying expression; however other commentators are less optimistic.