Broken Down and Built Again - AG Szpunar Opines Whether the Decompilation of Computer Programs Infringe Copyright

Hot off the heels of the recent decision in Oracle v Google, copyright protection in computer programming is facing its latest hurdle, which is this time in the European courts. A big aspect of computer software management is the fixing of ever-present errors, be it due to the implementation of the software or the software in isolation. When you encounter such bugs you might have to decompile the program, which, to put simply, means to convert an executable computer program into source code, allowing you to fix errors and then to recompile the program to enable its execution. While decompiling can be used for more nefarious purposes (such as to enable the 'cracking' of protected software), it can allow for the fixing of legitimate issues in licensed copies of software. But, because of this potential nefarious way of using decompilation, would doing so breach copyright? Luckily the CJEU is on the case, but before the main court has looked at the issue Advovate General Szpunar gave his two cents a little while ago.

The case of Top System SA v Belgian State concerned a number of applications developed by Top Systems for the Belgian Selection Office of the Federal Authorities (also called SELOR), including SELOR Web Access and eRecruiting, which is in charge of the selection and orientation of future personnel for the authorities' various public services. Many of the applications developed by Top Systems contained tailor-made components according to SELOR's specifications. In February 2008 Top Systems and SELOR agreed on a set of agreements, one of which concerned the installation and configuration of a new development environment as well as the integration of the sources of SELOR’s applications into, and their migration to, that new environment. As with many projects, there were issues which affected the various applications. Following these problems Top Systems took SELOR (and the Belgian state) to court for copyright infringement due to the decompilation of Top Systems' software. After the usual progression of the matter through the Belgian courts the matter ultimately ended up with the CJEU, and also the desk of the AG. The referring court asked the CJEU two questions. 

The first question asked "...whether Article 5(1) of Directive 91/250 permits a lawful acquirer of a computer program to decompile that program where such decompilation is necessary in order to correct errors affecting its functioning". 

The AG first noted that, while computer programs have copyright protection over the reproduction of the program, it is limited due to the nature of how computer programs work (i.e. they need to be reproduced on a computers memory to operate). Strict enforcement would impede consumers' use of computer programs and therefore isn't desirable. The same applies to the protection against alteration. The Directive above does take account of this and sets out that reproduction and alteration of computer programs "...do not require authorisation by the rightholder where they are necessary for the use of the program by the lawful acquirer, including for error correction". However, Article 5 does leave the possibility open to restrict these acts through contractual provisions. 

Even with that being a possibility, the ability to contractually restrict the reproduction or alteration is there, this cannot extend to all such activities, as the acts of loading and running of a computer program necessary for that use may not be prohibited by contract. 

The AG then moved onto the matter of decompilation for the purposes of correcting errors. He agreed with the submissions made by the interested parties in that decompilation is covered by the author's exclusive rights under the Directive, even though there is no express 'decompilation' provision there. 

Gary wanted to fix the software, but his hands were tied...

Although argued by TopSystems, decompilation cannot be excluded from those rights under Article 6 according to the AG (which allows for reproduction and translation of a computer program if it is indispensable for the operation of the program with other programs). The relevant provision therefore remains at Article 5 and 6 will have no bearing on the exclusion of decompilation. Article 6 does not stand as the only instances where it is possible to decompile a computer program.

The AG therefore proposed that the first question be answered as "... Article 5(1)... is to be interpreted as permitting a lawful acquirer of a computer program to decompile that program where that is necessary in order to correct errors affecting its functioning". 

He then moved onto the second question which asked "...in the event that Article 5(1)... were to be interpreted as permitting a lawful acquirer of a computer program to decompile that program where that is necessary in order to correct errors, that decompilation must satisfy the requirements laid down in Article 6 of that directive or, indeed, other requirements". 

Article 6 sets out, as discussed above, the decompilation of a computer program where that is necessary in order to ensure the compatibility of another independently created program with the program. The AG discussed the specific requirements under Article 6, namely that: (i) they only apply to those who have lawfully acquired the program; (ii) the decompilation must be necessary in order for that program to be used in accordance with its intended purpose and for error correction; and (iii) the intervention of the user of the computer program must be necessary from the perspective of the objective pursued. 

In relation to the second condition, the AG noted that an 'error' should be defined as "...a malfunction which prevents the program from being used in accordance with its intended purpose". One has to note that this does not include the amendment and/or improvement of a program, but simply the enabling of the use of the program for its intended purpose. 

On the third condition, the AG specified that, while the decompilation of a program can be necessary, it always isn't. He determined that "...the lawful acquirer of a computer program is therefore entitled, under [Article 5(1)], to decompile the program to the extent necessary not only to correct an error stricto sensu, but also to locate that error and the part of the program that has to be amended". So, a lawful user can decompile a program to both fix and locate any errors, which gives them quite a wide berth in doing so. Nonetheless, the AG noted that the decompiled program cannot be used for other purposes. 

The AG therefore proposed the answer to the second question as "...Article 5(1)… is to be interpreted as meaning that the decompilation of a computer program... by a lawful acquirer, in order to correct errors in that program, is not subject to the requirements of Article 6 of that directive. However, such decompilation may be carried out only to the extent necessary for that correction and within the limits of the acquirer’s contractual obligations". 

The CJEU's decision will be an interesting one and will undoubtedly impact the ability of programmers and companies to decompile computer programs to correct any errors they might find during the use of said programs. It would make sense to allow for their decompilation for this restricted purpose, since without that right major errors could render programs useless until the point when the provider can, and decides to fix those errors. It remains to be seen whether the CJEU will agree with the AG, but it would seem sensible for them to follow his responses. 

Boxed Up - Sharing of Software Add-ons Online is Copyright Infringement in Canada

The enforcement of copyright is never easy, particularly in today's world where access to infringing files, streaming websites and other means is almost as easy as simply searching for today's news. As infringers and suppliers of infringing materials become more and more sophisticated and clever, rightsholders have to pursue a wide array of cases of infringement. While direct infringement is often very easily determined, the facilitation of infringement by third-parties is always a tricky question (discussed more on this blog here and here). The Canadian Court of Appeal had to recently discuss this point in a very interesting decision.

The case of Bell Canada v Adam Lackman concerned the sharing of software add-ons on the website "TVAddons", operated by Mr Lackman. The KODI media player is an open source piece of software that enables the play of various types of multimedia. Various types of infringing content can be accessed using the media player when certain add-ons are added to it, which allow it to access and stream content hosted on the Internet; many of which were shared on the TVAddons website. Another piece of software was shared on the site called "FreeTelly", a modified version of KODI that allows a user to access infringing materials, and instructions on the installation and use of add-ons. Bell Canada objected to the potentially infringing materials shared on the website shared on the website and sued Mr Lackman for copyright infringement.

The case concerned an Anton Pillar order (discussed in more depth here), and whether the judge at first instance erred in their judgment on the order's standards' application to the facts at hand. The appellant argued that the court had mischaracterised their activities as infringing (when only a small number of add-ons were infringing), and therefore misapplied section 2.4 of the Canadian Copyright Act that deals with communication to the public.

The Court agreed that the judge at first instance had mischaracterised the activities of Mr Lackman (and TVAddons), and that they misunderstood the nature of their activities. Only 16 of 22 'Features' add-ons were tested, which doesn't even scratch the surface when over 1,500 add-ons are provided on the site. Similarly, the appellant's website, calling it a 'mini Google', when the provision of add-ons simply facilitated a quicker, more direct form of infringement by avoiding adds and providing easy access to links.

Having misunderstood the above, the judge had therefore also misapplied the law in relation to communication to the public. The Court considered that Mr Lackman, contrary to the decision at first instance, had communicated the works to the public, as "…the respondent’s website is not content neutral as it targets copyrighted content" by providing access to add-ons that are designed to provide unauthorized access to motion pictures and on-demand and/or live television programming. Having these add-ons, according to the Court, is akin to "…providing embedded links or automatically precipitating a path to copyrighted content". The same applies to programs that either aid in the installation of add-ons, or have pre-installed add-ons already to do the same.

In the light of the above the Court determined that the operation of the site clearly would not fall under the mere conduit exemption, but facilitates access to infringing materials. The site's branding also clearly encourages and highlights the site's purpose for the infringement of copyright through the add-ons, which additionally demonstrates clear knowledge by Mr Lackman of the hosted material.

The Court drew a parallel to the sale of pre-loaded set-top boxes in Bell Canada v iTVBox.net that allowed the user to access, for free, copyright protected content online. What is interested is that the ultimate source for the add-ons for the set-top boxes was TVAddons. As with the set-top boxes, the site would not be acting as a mere conduit, but a facilitator for the infringement of Bell Canada's rights.

Ultimately the Court did conclude that the judge at first instance erred in their decision and that Bell Canada would have a strong prima facie case for copyright infringement. Following the determination of likely copyright infringement, the Court also issued an injunction against TVAddons.

While the case's main focus was not the legal argumentation around copyright infringement, it still sets an interesting, a continuing precedent, where the Canadian courts are very likely to prevent the sharing of content online that facilitates infringement. This clearly now includes both hardware and software.

Source: Barry Sookman

Eyes Wide Shut - Sharing of TV Clips Online by TVEyes not Fair Use, Says US Court of Appeals

Fair use is a tricky issue, and often a thorn on the side of copyright owners. Overall one can appreciate the opportunities it creates, but also the headaches faced by those wishing to pursue someone hiding behind that particular shield. Rightsholders have been holding out for a life-line to narrow down the reach of fair use, and might've just been rewarded a win in the wider balancing act of fair use versus infringement. The matter was faced by the Court of Appeals recently, who issued their decision on the appeal in late February.

The case of Fox News Network LLC v TVEyes Inc. concerned the sharing of segments from TV programming by TVEyes. This is done through the continuous recording of TV shows, and compiling them into a searchable database. Users of TVEyes could then search for clips from various programmes, and watch up to 10 minutes of the content that interests them (and has been used by journalists and TV producers for some time). Clips can also be archived onto TVEyes' servers, or downloaded onto the user's computer. Fox ultimately took TVEyes to court for copyright infringement through the redistribution of their audiovisual content.

The case turned on whether the use by TVEyes could be classed as 'fair use' under 17 USC section 107. This looks at the usual four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The factors are assessed weighted together in the light of the purpose of copyright.

Under the first factors, the Court focussed on the precedent set by the Google Books case (discussed more here). In the matter, Google's book search service added something new to the rights attached to the written works, and therefore "…communicated something new and different from the original". Similarly to TVEyes' offering, the showing of snippets from each book "…added important value to the basic transformative search function" by allowing for the user to verify the information as being what was looked for.

Some TV clips are simply captivating

The Court concluded that, in the light of the first factor, TVEyes' service "…is similarly transformative insofar as it enables users to isolate, from an ocean of programming, material that is responsive to their interests and needs, and to access that material with targeted precision". The service saves on costs and time spent looking for materials should they be done without a quick search function. Even though the service was for commercial gain, it still was not enough to counter its transformative nature entirely. Ultimately this means that the first factor slightly weighs in favor of fair use.

In terms of the second factor, the Court swiftly concluded that it is inconsequential to this case, even if the subject matter of the works is reporting on factual events.

They then moved onto the third factor, which looks at the amount of the work copied, and whether it was substantial. The Court quickly concluded that, due to the sheer volume of material copied by TVEyes, which amounted to virtually the entirety of Fox's TV programming. When compared to Google Books, TVEyes often created copies of entire segments of programming that might cover all of the relevant material being sought, whereas Google actively blacklisted certain parts of text within search results to prevent this. This amounted to copying all that is important from the protected works, and weighed against fair use.

Finally, the Court looked at the service's effect on the potential market for or value of the works, particularly whether it competes with the original service. Due to the popularity of the service, there clearly was a marketplace for such services that was exploitable by Fox. This would have impacted any hypothetical monies made by Fox should they have offered the service, particularly in the light of unauthorized, unlicensed copying by TVEyes. This means that "…by selling access to Fox's audiovisual content without a license, TVEyes deprives Fox of revenues to which Fox is entitled as the copyright holder", which meant that the fourth factor also favored Fox.

Having considered the above, the Court had to determine whether, all factors considered, the use was fair use or not. The conclusion of this was that TVEyes' service was not justifiable under fair use, due to the sheer amount of works copied and the usurping of a function for which Fox was entitled to demand compensation for, even though the service was slightly transformative.

TVEyes was deemed to be liable for direct infringement of Fox's rights, and the Court imposed a permanent injunction on their services on allowing the viewing, downloading and sharing of clips from the site. The search function, however, was allowed to continue.

The case is a very interesting one, and sets clear boundaries for services similar to the one offered by TVEyes. Should the clips have been restricted to much shorter segments, and not allowed to be downloaded or shared, the company might have escaped liability. Other video service providers will undoubtedly heed this as a warning against any significant sharing of content.

Source: JDSupra

A Gentleman's Code - The Copying of Software Code and Copyright

Computer programming, especially to the layman, can be both incredibly daunting and very confusing, as the languages, while logical, can be quite impenetrable. Since computers and computing have become near ubiquitous in modern society, so has programming become a part of our lives, even if not directly. Due to this, the value of code and programs can be substantial, especially for ones that are lucky enough to become standards, or just plain popular. Code and copyright rarely meet, but in the vein of the above, can code be construed as a copyright protected work, and if so, how much can you copy before you're infringing the rights attached to the code?

The case of IPC Global Pty Ltd v Pavetest Pty Ltd (No 3) dealt with equipment used to test asphalt and construction materials, built by IPC, which included custom programming to enable the user to test said materials and view results. This piece of software was installed on the users' computer. Two individuals, Con Sinadinos and Alan Feeley, worked at IPC (with the latter working as a consultant as a part of Alueta). The pair then resigned from IPC in 2012, establishing a competitor company, Pavetest, which launched competing testing products. Mr Feeley had in his possessions copies of IPC's programs on his computer that he took with him when leaving IPC. He then provided them for a programmer who made copies of the programs, leaving some parts of the Pavetest identical to that of IPC's programs. IPC then took Pavetest (and the individuals) for, among other claims, copyright infringement and breach of confidence.

Although Justice Moshinsky had a wide array of issues to decide, focus for the purposes of this article will remain on the question: "...did Pavetest infringe copyright in the UTS software by the creation of version 1 of the TestLab software? In particular, did version 1 of the TestLab software reproduce a substantial part of the UTS software?"

After discussing, at length, the companies and the development of the two competing pieces of software, the court focussed on the matter of copyright infringement.

Original code? Nah... (Source: xkcd)

The courts have struggled with defining what amounts to a 'substantial amount', as per section 14 of the Copyright Act 1968, which was discussed by the High Court of Australia in IceTV: "The case law does disclose that special difficulty has been encountered in considering the relationship between the phrase “a substantial part” in s 14(1) of the Act and the definition in s 10(1) of that species of “literary work” which is a “computer program”, being: “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” (Emphasis added) The phrase emphasised suggests the importance of function, although this is usually encountered in patent and designs law, rather than in the “traditional” law of copyright respecting original literary works".

The courts have developed a test to determine whether a computer program has been infringed, there is ‘the need for some process of qualitative abstraction of the material features of the computer program in question’, and the copying of those features in the potentially infringing program (i.e. of a program calculates figures based on data, the program features of the calculation would be more important than the aesthetic function of the same under this context).

While the respondent conceded that the code is a copyright protected work, that substantial parts of the code were copied (but not to the degree of being a substantial part under section 14), and that this was done on behalf of Pavetest with the authorization of the individuals above, the court still had to consider whether the copying was indeed substantial under the law.

Due to the coder working for Pavetest to be able to rewrite the code so as the new version didn't infringe IPC's copyright, there clearly was a wide margin of expression in how the code could be implemented, while still having the same functionality. The writing of the code therefore included a degree of choice and judgment, making the expression of that functionality original under copyright. While some parts of the code would not be essential, Justice Moshinsky still upheld that they were original works equally to those parts that were essential. Finally, the amount of code, albeit a small amount (roughly 10,000 lines of code from about 250,000 lines), the copying was substantial, according to the judge, due to its necessity to achieve the desired functionality, rather than just simply through a quantitive measure. Pavetest had subsequently infringed the rights in the code.

The case is a very interesting one, and highlights a need for anyone copying others' code (which seems to be an industry standard, albeit only in parts of programming) to be cautious, and to rewrite anything that could be deemed to be a substantial copying. Software creation is incredibly complex and difficult, and one can appreciate the adoption of shortcuts, but the courts will clearly combat any abuses of others copyright works, even if it's just 'meaningless' code.

Source:  IP Whiteboard

Goliath v Jury - Google's Use of Java APIs Fair Use, Says Jury

The fight between Google and Oracle over the Java platform, specially the API (Application programming interface) for the program and its copyright protection, has been raging for what feels like aeons. This blog has discussed the Court of Appeals (where Google was found to have infringed the code's copyright protection through verbatim copying into its Android operating system) decision some two years ago, but many have waited for the jury decision in the saga, which was handed down only a month ago.

By way of a short primer for those who have not followed the matter closely, the case dealt with 37 API packages released by Oracle (at the time Sun Microsystems) which pertained to its Java platform. Google sought to implement Java into its budding mobile operating system, Android, but both parties could not agree on a proper licencing arrangement. Nevertheless, Google implemented the APIs into its own platform, Dalvik, which consisted of 160 different APIs (of which 37 were Java APIs). Due their verbatim copying into the Dalvik platform, Oracle took Google to court, asserting copyright infringement.

After the earlier decision in various stages in the US judicial system, Google consistently lost and was deemed to have infringed the copyright in the APIs. The jury in this instance sought to look at whether Google's use amounted to fair use, and thus not infringing the rights in the works. This decision was hugely important, as Google faced damages totalling nearly $10 billion.

Blake couldn't contain himself at the thought of
unlimited, free APIs

Judge Alsup gave extensive instructions to the jury as to their assessment on fair use under US law. The jury decided the matter in three days, reaching a unanimous verdict of a finding of fair use by Google. One could argue against their finding of fair use, with Google's use not being prima facie very transformative (due to the verbatim copying of code); however, building the Android platform using the Java API did change it to something more than just Java. The judge also emphasised the fourth factor, the effect of the copying on the potential market for the work, which, in this writer's mind, could have been the linchpin for the jury's decision. Even though Java is implemented into many systems, it in itself is not an operating system, although its free incorporation into such clearly would impact on its potential market. The jury saw that Google's use was fair, and one can only wonder what persuaded them to reach the conclusion.

Although there is not much to discuss on the substantive side of the case, as is usual in this blog, the decision still is an important development in the world of technology and computer programming. As Google's statement on the win expresses: "Today's verdict that Android makes fair use of Java APIs represents a win for the Android ecosystem, for the Java programming community, and for software developers who rely on open and free programming languages to build innovative consumer products". Arguably, Google does have a point. Java has become night ubiquitous in the computing sphere (although the emergence of HTML5 could, arguably, make it obsolete), and a lack of an ability to use the technology would severely hinder any attempts of building a popular, fleshed-out operating system. On the other side of the coin, this is a blow for reaping from what you've sown, and Oracle has a right to be upset with their loss (and incredibly monetary loss through unacquired licencing fees for the hugely popular Android platform).

Many in the software industry seem to welcome the decision, such as Al Hilwa, who saw that "... most developers would likely prefer not to be burdened by copyrights around APIs". This writer is puzzled with this response, since many programmers might not be so keen to share the fruits of their labor for free. Oracle have indicated that they will appeal the decision, and this writer keenly awaits any new developments in the never-ending story that is Oracle v Google.

Source: BBC News

Retrospective - Computer Software and Copyright

In a world where everything is becoming more and more digital and reliant on computers to handle most tedious or complex tasks, software is king; it is what executes these tasks and makes things easier to do on the aforementioned devices. With the software business booming, more and more value can be placed on having the right software for the right task in the highly competitive space, and with that the desire to protect your product. Even in the wake of the Alice decision some time ago (discussed on this very blog here and here) the protectability of software still remains, albeit quite hindered. In light of the more difficult protectability of software through patents, copyright shines brighter and as a possible alternative, yet poses a question which might be less glaringly obvious to most: is software protected under copyright?

A fairly recent case in the UK Court of Appeals, SAS Institute Inc v World Programming Ltd, attempted to take on this issue and decide once and for all whether copyright does afford protection to software and its underlying code. The SAS Institute is a software development company well-known for its analytical software, often referred to as the SAS System (or just plainly SAS). A core component of the SAS System is SAS Base; a piece of software which allows the user to easily write and run scripts to analyze and use data. The scripts themselves were written in a programming language developed by SAS called SAS Language. Finally, the SAS Base software can be extended upon by three additional components: SAS/ACCESS, SAS/GRAPH and SAS/STAT respectively. In addition to the software SAS have also written manuals for the use of its software. The SAS environment was quite tightly controlled, and customers had no secondary options which to use in the execution of their developed scripts for the platform (the SAS Language only functioned through SAS' System). Their competitor, World Programming, sought to create an alternative piece of software capable of utilizing the SAS Language, so that any programs written in the Language can be used in both their suite and SAS' - the end-result being a program called the World Programming System. The software endeavored to mimic SAS' System as closely as possible; however they had not accessed SAS' source code in their development, merely copying the outputs and inputs of the System. Due to this, SAS sued WPL, asserting that the company had copied its manuals; through the copying of the manuals they had infringed SAS' copyright in their extension components; WPL had infringed its copyright in a version of its System, the Learning Edition, and breached its terms in its misuse; and WPL had infringed SAS' copyright in its manuals after creating its own version called the WPL Manual.

Being 'creative' in programming can be difficult

Confusion in terms of acronyms aside, the court was therefore faced with the ultimate determination of whether copyright exists in SAS' software, and whether WPL had infringed that copyright. Under EU legislation, more specifically Directive 91/250/EEC (now governed by Directive 2009/24/EC with no substantive differences), computer programs are wholly protected by copyright as a form of expression; however the underlying principles of those programs are not. To put this into more simple terms, the code executing a specific function in its particular expression can be protected, but the idea of that execution is not, allowing anyone to create a program doing the same thing, so long as the expression of that execution is not the same as other expressions of it (i.e. different code, same result). Computer programs have since been included in the UK Copyright, Designs and Patents Act 1988, under section 3.

To look at things further, the scope of what is protectable under the above Directives was left quite open, but was subsequently added to in the case of Infopaq International v Danske Dagblades Forening, where the European Court of Justice saw that copyright protects an author's "...intellectual creation" (the wording used in the Berne Convention), potentially encompassing programs quite readily if it can be seen as such a work - supplanting this definition in the Directive's interpretation. What is important in this term's application, in the Court's judgment, lies within whether a computer program can be seen as an 'intellectual creation', and in assessing this the court must decide that if the expression within the computer program is purely a technical one (i.e. derived from necessity for things to work right), the work cannot be seen as an intellectual creation under this definition. To put things in more simplistic terms: "...the author [has to be] able to express his creative abilities in the production of the work by making free and creative choices". If a programmer, in the creation of a specific application, can express his or her creativity and choices in how the program works, it can be protected by copyright. Even if the program has very specific functionality, or combines several different functional approaches to the execution of its desired task, the law does not protect it under copyright. In the court's view the copyrightability of functions or functionality, no matter how well used or combined, would be tantamount to the copyrightability of an idea, and therefore is not within the remit of copyright.

Finally, the court had to assess whether the manuals created by SAS are protected as works, and whether WPL had infringed those manuals' copyright protection.Their content was largely informative, and therefore would encompass most of the 'ideas' expressed in the aforementioned programs, or as expressed by Lord Justice Lewison: "...what counts as an idea, for the purposes of a computer program, also counts as an idea for the purposes of a manual". With this in mind, should the manual express the idea in a way which can be seen as protectable, it can fall within the remit of the law. His Lordship dismissed both claims on the manuals, effectively dismissing their protection due to a lack of any protectable expression, as they merely described the function of the programs without adding anything original on the author's part.

In the end SAS lost their appeal and the Court of Appeal closed the door on the copyright protection for programs, at least for the most part. The case was appealed to the UK Supreme Court, however leave was not given, solidifying the law's position through the Court of Appeal's judgment. The position presented in the case differs drastically to what has been discussed in the United States, where programs can be protected by copyright. Nevertheless the case is without a question an important milestone in relation to copyright and computer software, and this writer for one believes it will stay as such for a while.

Streaming TV Does Not Violate Copyright

In a time when services like Netflix and Hulu are showing the cable companies what's what through convenience, choice and pricing, one would imagine there would be no need for people to stream content outside of a wide array of services enabling you to watch almost what ever you want, when ever you want. This however, is a reality, and access to content is still tough for some either due to monetary or because of regional restrictions.

A website, Aereo, operates by receiving TV signals and then converting them into a different format, allowing subscribers to watch TV shows on-demand through their service via the Internet for a subscription fee. In this manner, the service is much alike Netflix; however allowing you to watch recently aired shows as opposed to entire seasons once on offer via Netflix. Aereo does allow you to watch live TV as well as programs which have been recorded once they have aired. Two media companies, Hearst Stations and WCVB-TV, objected to this and sued Aereo for copyright infringement.

In a recent ruling, the District Court of Massachusetts had to decide whether Aereo's activities would indeed infringe copyright under section 106; more specifically the ability to perform (i.e. transmit) the copyrighted content publicly. The Court in its assessment had to determine whether the service would be a remote recording service, much akin to a DVR in a home, drawing from the case of Cartoon Network v CSC Holdings (Cablevision), where a remote DVR service was seen to not infringe copyright as the recorded programs was not deemed a 'public performance'.

Some love streaming TV a 'bit' too much

Clearly one can draw also from the US view of fair use, more specifically time shifting, where a viewer can record a show to view on a later date and that act would not infringe copyright. Much like the case of Sony Corporation of America v Universal City Studios, the user selects which programs it would like to record on Aereo, therefore arguably time shifting the content they wish to view. The case at hand however did not touch upon this fact. Hearst was also unable to show irreparable harm resulting from Aereo's service, only citing the possibility of harm through the possible loss of cable subscribers and their bargaining position when dealing with cable companies; an argument which was rejected by Justice Gordon, stating that it would "...take several years to materialize".

The Court did consider other factors, but these remain the most relevant. In concluding the Court saw that Aereo did not infringe copyright through their service, although different courts in the US have seen this to be different. The plaintiffs have since sought the right of appeal from the US Supreme Court, attempting to have them finally decide this issue, due to other services like Aereo having been shut down in New York and California. The Supreme Court, should they choose to take the case on, would have to decide "...whether the performance of their copyrighted programming via Aereo is "public" and therefore prohibited by the copyright law, or if Aereo is engaged in tens of thousands of "private" performances to paying strangers".

Source: Gigaom

New Zealand Bans Software Patents - Or Did They?

As we have turned towards an ever-more computerized world, software has arguably become almost as valuable as the hardware it runs on. Without effective protection through patents for innovative software products, the field would be a free-for-all of copying, using others' methods and creating an environment where innovation would not persist. Some have argued, and rightfully so to an extent, that the field has lead to a culture of abuse and 'patent trolls' where software patents are merely a conduit for quick cash-in schemes for companies who have no intention of ever using the patented software. Due to this clear misuse there have been calls for reform or the full fledged abolishing of software patents in the common law, and finally those calls have been answered by the far-away land of New Zealand.

Software engineers' collective disappointment

In mid-2008 the New Zealand Parliament had the Patents Bill introduced, which sought to "...update the New Zealand patent regime to ensure that it continues to provide an appropriate balance between providing adequate incentives for innovation and technology transfer". The Bill introduces a cavalcade of changes to the old Patents Act 1953, being one of the biggest modifications of the New Zealand patent legislation in 60 years. The Bill introduces an exception to patentability for computer programs in very express terms. Although the exclusion provision states that computer programs are not patentable, this is not the case entirely. 

Under a Supplementary Order Paper to the Patents Bill computer programs are not patentable "...as such if the actual contribution made by the alleged invention lies solely in it being a computer program" (emphasis added). The first two words highlighted in the quote above prove integral to the interpretation of this new provision; software patents are not allowed as such, but should they be a way to implement a patentable process, they can be patentable. The SOP provides an example of a chip in a washing machine, through which a computer program in the chip improves the washing machine's operation. In such instances the software in the chip could be patentable. What is important is the interconnection between the software and the improved process.

In interpreting this the new provision employs a similar approach to that of the European Union and the United Kingdom. This approach was set out in the case of Aerotel Ltd v Telco Holdings Ltd (and others) and Macrossan's Application, intepreting section 1(2) of the UK Patents Act 1977 dealing with the subject matter of what is not an invention. The New Zealand provision's wording, albeit slightly different, still encompasses the heart of the Aerotel considerations, while adding specifics pertaining to their own legislation, and arguably using the Aerotel test would prove beneficial for the New Zealand judiciary.

Kiwis are very apt with technology

In assessing a patent and whether it is excluded from patentability under the Aerotel approach, the courts would have to properly construe the claim; identify its actual contribution; ask whether it falls solely within the excluded subject matter; and check whether the actual or alleged contribution is technical in nature. The first factor is purely a standard assessment of the patent claim, deciding what the monopoly would be before considering its possible exclusion. The second factor is deciding whether the inventor has really added anything to the stock of human knowledge, emphasizing the substance of the invention (what it actually contributes) above the form of the claim itself (what is argued it contributes). The third factor is assessing whether the contribution is solely an unpatentable subject matter. Should the invention be a patentable subject matter, the final consideration is if it is of a technical nature. 

The New Zealand approach is assessing the substance of the claim (rather than its form and the contribution alleged by the applicant) and the actual contribution it makes; what problem or other issue is to be solved or addressed; how the relevant product or process solves or addresses the problem or other issue; the advantages or benefits of solving or addressing the problem or other issue in that manner; and any other matters the Commissioner or the court thinks relevant. Clearly this echoes the approach given above, and would be served well should the New Zealand judiciary consider the Aerotel test.

So as one can see New Zealand has effectively banned software patents, but only to the extent that they exist independently. Calling this a blanket ban is merely hyperbolic, but the potential abuses that have been experienced with pure software patents have been remedied, and it remains to be seen whether the rest of the world will follow suit. Calls have been made for the US to do the same, but with vast amounts of money being tied into software innovation in the US, it can be argued that a ban over software patents in the US is still well behind the horizon.

Source: ZDNet