Subject: Re: Copy-Back License draft for discussion
From: Gregory Aharonian <srctran@world.std.com>
Date: Tue, 26 Apr 2005 01:29:59 -0400 (EDT)

>International agreements such as TRIPS, to which the U.S. is a party,
>require software to be protected as a literary work.

The TRIPS and WIPO Copyright Treaty rest on Berne, which is one of a
variety of international IP treaties that are not self-executing in the
U.S. - Congress has to explicitly add such language to U.S. statutes.
Congress has never added "computer programs are literary" to the statutes,
despite being required to do so by TRIPS.

>The copyright title doesnt specify which category of subject matter
> software falls into.

As the bible of copyright, Nimmer, says, software copyright is "tacitly
assumed" to be in the statutes.  The statutes (102b) do say that
processes and methods (like Java methods) are uncopyrightable
"regardless of form".  It seems to me that an actual statute trumps a
tacit assumption.

Greg Aharonian
Internet Patent News Service