Friday, March 17, 2006

Software, Information, and Mental Processes

Working on a paper pointing out that the Supreme Court has never reversed, or even questioned, its holding in Gottschalk v. Benson that computer programs--algorithms--cannot be patented and contending that that holding is correct, I find myself struggling once again to explain matters that, unlike the law, I know little about.

The Court, for example, said in that case that algorithms are not patentable because, although most processes, if original enough, are patentable, algorithms are mental processes. That, of course, raises questions about the nature of mental processes, questions that years of studying the law have hardly prepared me to answer. Other ontological questions raised directly or indirectly by Gottschalk are: "what is an idea?", "what is a number?", "are mathematical truths laws of nature?", and "what is information?".

And they, in turn, raise the ultimate question as to how one can possibly explain such issues to an audience of lawyers and, worse, legal academics.


Two days ago, on March 15, as has happened according to legend on that date since 1819. the buzzards returned to Hinckley, Ohio. It certainly is true that a few buzzards were seen in Hinckley on that date, although whether this was the sighting of returning buzzards rather than of permanent residents is a matter not past dispute.

I don't think that I have ever been to Hinckley, which is on the Western side of the Cuyahoga river which I seldom cross. Still I find the legend of the returning buzzards, for some reason, quite pleasing, perhaps because I have also never been to San Juan Capistrano. where the swallows will return in a couple of days on March 19.

Saturday, March 11, 2006

Copyrighing and Software

Recently on the CyberProf list someone raised a question as to whether software should have been made subject to copyright.

Here is what I said in response:

Remeber that the Supreme Court has never held that software is copyrightable and that the copyright Act provides that: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Programs are algorithms, or implementations of algorithms, and thus are "ideas" as that term is used by the Court in Gottschalk v. Benson. Programs consist of "procedures" and are "processes" that run on processors. Programs clearly are "methods of operation"---they are methods of operating a computer. And programs are always, though usually only on a very small scale, discoveries: "Ah, that's how to do it," says the programmer to himself.