|                                                     |
	     |       PROGRAMMING FREEDOM  -  online edition        |
	     |              league@prep.ai.mit.edu                 |
	     |                                                     |
	     |          June 1992  -==-  Volume I  Number 4        |
	     |                                                     |
	     |           The Electronic Newsletter of              |
	     |        The League for Programming Freedom           |
	     | 1 Kendall Sq #143, POBox #9171, Cambridge MA 02139  |
	     |  Editor: Spike R. MacPhee (spiker@prep.ai.mit.edu)  |
	     |Assistant Editor: Andy Oram (oram@hicomb.hi.com)     |
	     |     Reproduction of Programming Freedom via all     |
	     |            electronic media is encouraged.          |
	     |     To reproduce a signed article individually,     |
	     |       please contact the author for permission.     |

		      <><><><><> TABLE OF CONTENTS <><><><><>

       An analysis of the Congressional OTA Report - Simson Garfinkel
	   LPF publicity: Cons, media mentions, & volunteer efforts
	   Patent law "harmonization" Congressional bills introduce
	LPF News - 50% membership increase; voicemail down temporarily
       Quorum Files Declaratory Judgment Action Against Apple Computer
	     MacBlaster game, item noticed by Christopher Glaeser
		     LPF email lists - what they are for
			 Apple-Microsoft/HP suit news
	      LPF Boutique: Materials Available from the League

     <>An analysis of the Congressional OTA Report - Simson Garfinkel<>

    Report on "Finding A Balance":, the Congressional Office of
    Technology's 1992 report on "Computer Software, Intellectual Property
    and the Challenge of Technological Change."

    On May 1 the Congressional Office of Technology Assessment (OTA)
    issued its long-awaited report on the impact of copyright and patent
    law on computer programs.  This 228-page report is the most
    comprehensive description to date of the issues of primary importance
    to The League.

    The OTA's mission is to analyze policy questions pertaining to
    technology in an objective and bipartisan way - not to make policy
    recommendations.  For this reason, the OTA's report does not conclude
    if patents and copyrights are "good" or "bad" for software or the
    country as a whole: it simply provides an analysis of the current
    state-of-affairs and outlines policy options available to Congress.

    The OTA's report is therefore likely to be at the heart of any future
    action taken by Congress on these matters.

    "Finding A Balance" is the last in a series of reports that OTA has
    been issuing on intellectual property law.  Other reports have looked
    at the electronic redistribution of information ("Intellectual
    Property Rights in an Age of Electronics and Information," OTA 1986),
    the role of patents in the field of biotechnology ("New Developments
    in Biotechnology: Patenting Life - Special Report," OTA 1989), and
    the impact of home copying ("Copyright and Home Copying: Technology
    Challenges the Law," OTA 1989).


    Until now, the ways that copyright and patent law has been applied to
    different parts of a program in different ways.  Nearly all of these
    determinations have been made in the courts.  Most observers feel that
    the courts are the wrong place for these decisions to be made.
    Indeed, different courts around the country have issued different,
    often contradictory, rulings about the extent to which copyrights and
    patents affect the writers of programs.

    The problem, says OTA, is that there are elements of computer programs
    that are like literature, and apparently covered by existing copyright
    laws, while there are other elements that smack of invention and
    should therefore be covered by patent laws.  OTA points out that
    software is the only thing in American society that can be covered by
    copyright, patent and trade secret laws at the same time.

    The report focuses on four main elements of computer program:

	 * The program code itself
	 * The user interface design
	 * The program's external design
	 * The program's function

    It then analyzes how copyright and patent law are affecting the
    development of programs.  Finally it concludes with possible policy
    options for Congress.


    There is no question today that copyright and patent laws are in a
    state of flux with respect to computer programs.  But there is a real
    question about the way that the problem should be addressed.

    Today there are two schools of thought in the United States of how the
    situation should be fixed: one school of thought is that Congress
    should clarify the ways in which copyright and patent law affects
    computer programs. The second school holds that Congress should create
    a new "sui generis" approach that deals specifically with computer

    The OTA disagrees with the statement that "the majority of legal
    experts and firms in the industry take the position that existing
    structures like copyright and/or patent are adequate to deal with
    software."  Case law will evolve in the courts, OTA says these experts
    contend, and "sui generis approaches risk obsolescence as the
    technology changes."

    Instead, OTA says, "despite the advantages, there are questions as to
    whether this process of accommodation can - or should - continue
    indefinitely.  With respect to software, there may be a point where it
    becomes preferable to complement or substitute ... the existing
    structures, rather than extend the scope of copyright to fit certain
    aspects of software," (p. 8).


    OTA first tackles the question of copyright.  The issue of primary
    importance, says OTA, is to prevent the wholesale pirating of
    completed computer programs.  The straightforward way to do this is to
    treat a program as a literary work.  This approach is well-established
    in both US and International law.  Nevertheless, says OTA, there is
    still a great deal of software piracy - particularly overseas.

    Beyond the question of verbatim copying, there is a "fuzzy" line as
    more and more aspects of a program's design and function are covered
    by copyright law.

    One option for Congress, says OTA, would be not to act and let these
    matters be resolved in the courts.  A way to speed that process would
    be for congress to establish a special "fast track" inside the court
    system for intellectual property litigations.

    If Congress does want to do something, one of the first things that it
    could do, says OTA, is to clarify the scope of copyright to either
    specifically include or exclude "one or more aspects of software, such

	 * computer languages
	 * algorithms
	 * design specifications
	 * user interfaces.
	 * other interfaces.

    Congress could do this by:

	 * Expanding upon the Copyright Law's current language on "subject
    matter of copyright" by saying that the above are or are not
    copyrightable subject material.

    Another option, says OTA, would be for congress to exempt computer
    programs from copyright and make them subject to new "sui generis"

    Although not an issue of primary concern to the league, the OTA report
    also covers the question of reverse engineering.  OTA calls upon
    Congress to specifically address the question of reverse engineering
    -- either through legislation or cooperation with industry -- and
    clarify whether reverse engineering is considered "fair use" under the
    copyright law.

    OTA suggested that Congress might want to develop a technique for
    giving "limited rights for incremental software advances that would
    not be patentable or for aspects of program functionality that fall
    outside copyrightable subject matter."


    Computer-related Patents pose a special problem to the PTO, OTA says,
    because the Supreme Court has ruled that mathematical algorithms may
    not be patented but processes - including processes that involve
    computers - may be patented.

    "The long-term question of whether patent (or patentlike) protection
    for computer processes and/or algorithms is socially desirable is
    separate from the related question of how well current U.S. Patent and
    Trademark Office (PTO) procedures are working now," (p. 10).

    On the question of whether or not the PTO procedures are working now,
    OTA concludes that they aren't.

    OTA states that the biggest problem preventing the PTO from carrying
    out its current mission is a problem of dealing with prior art.  PTO
    is forbidden from issuing patents unless they are "non-obvious" to
    practitioners in the field and "novel" - that is, have never been
    implemented before.

    The LPF believes that they are mistaken--while this problem does
    contribute to bad consequences, even a perfect awareness of the prior
    art would at most eliminate a fraction of them.  Rms has written an
    article relevant to this that was in Computerworld and it will be in
    our next issue.

    Because of PTO's problems, OTA says, patents have been issued that are
    neither non-obvious nor novel.

    The PTO has "serious" problems, OTA says, including:

	 * Examiner training and turnover
	 * Length of pendency periods (from filing to issuance) for
	    patent applications.
	 * The backlog of applications
	 * The quality and extent of the prior art database.

    PTO's problems quickly become those of practitioners in the field,
    says OTA, because they create an uncertain economic environment in
    which to operate.  At the root of this uncertain environment is "the
    long timelag between patent applications and issuance, compared to
    fast-moving software life cycles." (p.7) Programs can be conceived,
    developed and brought to market by one company between the time that
    another company files for and is awarded a patent.  OTA calls such
    patents "land-mine patents."

    To solve these problems, OTA says, the patent office could "fill in"
    its database of both patent and non-patent prior art.  OTA recommends
    that the PTO could revise its electronic search system so that
    examiners can easily pull from the database all software-related
    patents (currently, OTA says, this is impossible to do).  PTO could
    reclassify its patents in the computer arts.  The OTA recommends that
    PTO may want to perform this reclassification and filling-in in
    conjunction with the computer industry.

    One way to eliminate "land-mine patents" - patents that are filed
    when the technology is new but granted many years in the future -
    suggests OTA is to require the PTO to publish all software-related
    patent applications published after 18 months, whether or not the
    patents were issued.

    * long-term issues

    The OTA report is much hazier on whether patents for software are a
    good or bad thing.  "Some members of the software and legal
    communities believe that software-related patents will tend to stifle,
    rather than encourage, technological progress," says OTA.

    In one footnote, OTA reprints a letter from Robert S. Boyer (Professor
    of Computer Sciences, University of Texas, and an LPF member)
    recommending that "patent law should be clarified to the effect that a
    patent is never infringed merely by the use of software on a

    OTA notes that "protection of software-related inventions and
    algorithms by patent is a recent development and is controversial."
    OTA states that the meaning of the term "mathematical algorithm"
    (which PTO is forbidden to patent) "has been the subject of
    considerable discussion and debate."  Algorithms are not
    "mathematical" if they can be stated in terms of operations on things
    in the "real world."

    "Over the past decade, patents have been issued for software-related
    inventions such as":

	 * linear-programming algorithms
	 * spell-checking routines
	 * logic-ordering operations for spreadsheet programs
	 * brokerage cash-management systems
	 * and bank-college savings systems

    "To some industry observers, there appears to be variance--or, at
    least, uncertainty on their part--in how PTO guidelines are being
    applied during examination," (p. 32).

    OTA doesn't reach a conclusion; instead, it always falls back on the
    technical problems currently facing the PTO in deciding whether or not
    software is "novel" and "non-obvious."

    OTA asked PTO to walk it through a typical software-related patent
    application.  PTO refused.

    OTA identifies three different policy issues regarding software

    * Statutory Subject Matter for Patents

    "To reduce uncertainties and clarify legislative intent, Congress
    could explicitly address the question of patentability for
    software-related inventions and for certain algorithms," (p. 32).

    This would be a far more difficult problem than defining the scope of
    copyright, says OTA.  "The term 'software patent' does not correspond
    to any PTO category," (p. 32).  Nevertheless, Congress could:

	 "Option 2.1: Refine the statutory definition of patentable
    subject matter to provide guidance to the courts and PTO.  Legislation
    might address the extent to which processes implemented in software or
    "mathematical algorithms" are or are not statutory subject matter.
    Legislation might also address the issue of special exemptions, such
    as for research and education.

	 "Option 2.2: Exclude software-related inventions and/or
    algorithms from the patent law and create a special, sui generis
    protection within a patent framework for some inventions.  This latter
    might have a short term, lower criteria for inventiveness, and/or
    special exemptions from infringement"

    * Prior art and Examination Quality and Timeliness

    On the question of prior art, OTA says that the database of prior art
    must be filled in.  They suggest:

	 "Option 2.3: Encourage establishment of a supplementary
    repository of nonpatent prior art, either public or private."

    OTA also outlines three ways that PTO could improve its internal
    process, including developing a new automated program for
    cross-indexing and retrieval of patents, improved training and
    funding, and increased input from the software community.


    Instead of seeing software patents and look-and-feel copyright as an
    issue of free speech, OTA's report takes a very conservative approach:
    the current system isn't working in a fair or uniform manner.

    As the title of the OTA's report indicates, the agencies biggest
    concern is finding a balance and presenting options for congress.

    This report presents Congress with many policy options that are
    diametrically opposed.  For example, it says that Congress could
    specifically exempt programs from copyright or it could strengthen
    copyrights on programs.

    To order your own copy, send $11.00 (international customers add 25%)

	     Superintendent of Documents
	     P.O. Box 371954
	     Pittsburgh, PA 15250-7954
    fax:     202-512-2250

    Payment may be in the form of check, payable to Superintendent of
    Documents, GPO Deposit Account #, or VISA or MasterCard (be sure to
    include your expiration date and authorizing signature.)

      <><> LPF publicity: Cons, media mentions, & volunteer efforts<><>

    Send in any LPF mentions or volunteer efforts and we'll list it.

    April 13: Unix User's Association of Southern California - software
    patents speech by Paul Eggert (eggert@twinsun.com)

    April 27: Computing Professionals for Social Responsibility, LA
    Chapter - software patents speech by Paul Eggert.

    April 27-30: XWorld Conference and Exhibition, New York - LPF
    materials brought by David B. Lewis, uunet!craft!david@uunet.uu.net

       <><>Patent law "harmonization" Congressional bills introduced<><>

    Electrical Engineering Times, 4/27/92, p. 32, has an article on bills
    introduced into Congress for patent law "harmonization".  These are
    supposed to bring us in line with the rest of the world.  The major
    changes are:

	1: We change the law from "first-to-invent" to "first-to-file".
	   Apparently some lip service is being paid to the notion of
	   protecting an original inventor from being shafted by a
	   quick filer, but exactly how this will be managed is not
	2: Patents will be make public 18 months after the application
	   is received, instead of being help privately until being
	3: The term would change from 17 to 20 years.  The term would
	   start on the filing date instead of the date of issue.
	4: An expedited patent search system so invalid patent
	   applications can be located before the application is made
	   public in 18 months.

    The article doesn't even try to guess what the chances are of this
    bill passing, although it does say "Even though the U.S patent system
    seems to be the odd man out in the international arena, there is no
    huge pressure for change in the United States."  Sorry about that...

    Summary by Mark R. Nelson, 73650.312@CompuServe.COM 

	<><><>LPF News - 50% membership increase; voicemail down<><><>

    The active membership, people who have renewed in the last year, has 
    increased from 450 at Christmas to 689 as of June first.  This is a 53%
    increase in less than a half-year.  Thanks to you all for the recruiting
    and publicity efforts that have made this possible.

    Our voicemail number is temporarily down; the subcontractor who
    provided voicemail service to our snailmail mailbox company abruptly
    went bankrupt; we are attempting to recover the number from them and
    provide more reliable service to you without obsoleting our stocks of
    LPF materials with the voicemail number on them.

     <> Quorum Files Declaratory Judgment Action Against Apple Computer<>

    Lawsuit Seeks Relief From Apple Allegations Of Copyright, Patent
    Infringement - A press Release from Quorum Software Systems, Inc.

    Menlo Park, Calif., May 12, 1992 - Quorum Software Systems, Inc. today
    announced it has brought legal action against Apple Computer, Inc.
    (Cupertino, CA) to counter unsupported allegations of patent and
    copyright infringement.  Quorum's lawsuit stems from recent letters in
    which Apple accused Quorum of infringing its intellectual property
    rights, and revoked Quorum's privileges as an Apple Certified

    Additionally, the complaint seeks redress for Apple's accusation that
    Quorum, in helping independent software developers (ISVs) migrate
    their Macintosh-compatible applications to other platforms, induced
    those ISVs to violate licensing and confidentiality agreements with
    Apple.  Apple's assertion implies that developers have knowingly or
    unknowingly included Apple proprietary information in their
    independent source code.  Quorum believes Apple cannot assert any
    ownership of application source code created by independent software

    The complaint centers on the allegation that Quorum Latitude, a
    cross-platform compatibility tool that enables Macintosh-compatible
    applications to run on other computer platforms, violates Apple
    patents on "pull-down menus" and "Color QuickDraw" and Apple's
    copyrights.  Latitude relies solely on the use of Motif or Open Look
    for pull-down menus and uses Adobe Display PostScript or SunSoft NeWS
    for screen rendering, and therefore could not infringe on Apple's
    patents or copyrights.

    Quorum asks the United States District Court for the Northern District
    of California to rule that Quorum has not infringed any copyrights or
    patents of Apple and to prohibit Apple from making further assertions
    that Latitude violates any Apple intellectual property rights.

    "From the very beginning of our technology development, we have
    carefully avoided any perceived or actual infringement of Apple's
    intellectual property rights," said Sheldon Breiner, president and
    co-founder of Quorum.  "For Apple to accuse us of impropriety is to
    discredit the technical innovations we have achieved in our Quorum
    Compatibility Engine and Latitude product."

    "Like any other independent developer, we read publicly available
    information such as Inside Macintosh and then wrote some innovative
    software," said R. Martin Chavez, co-founder and chief technical
    officer.  "The Compatibility Engine simply liberates
    Macintosh-compatible applications to run on other platforms without
    touching any of Apple's Macintosh technology."

    Quorum Latitude is based on a core technology called Quorum
    Compatibility Engine.  When an original Macintosh-compatible
    application makes a call to any systems facility, the Compatibility
    Engine responds by rerouting the request to a similar service resident
    on computers using the UNIX operating system.  For screen display, the
    Compatibility Engine redirects Macintosh-proprietary QuickDraw calls
    directly into Display PostScript or NeWS.  The PostScript language is
    a hardware-independent imaging language that supports any range of
    display, resolution and output devices...

     <>MacBlaster game, by Christopher Glaeser, team1!cdg@uunet.uu.net<>

    Check out page 248 of the June issue of Windows.  There is a promotion
    for a shareware program called Macblaster written by Earl Gehr.  It is
    a game that pits your PC against a fleet of attacking Macs.  The Macs
    zip across the sky trying to destroy your PC by dropping copyright
    bricks.  The object is to blast all of the Macs before they hit your
    PC with a copyright.  Hmmm, interesting tactic indeed.

	    <><><>LPF email lists - what they are for<><><>

    These lists are for LPF members only, although you may, of course,
    redistribute postings to your friends in the hopes of getting them to
    actively support the LPF by joining.

    This moderated mailing list
     and its two sub-lists:
     and    league-activists-remote@prep.ai.mit.edu should be used only
    for members' requests for assistance in league projects, local or
    nationally, or for announcements from LPF.

    These lists are filtered by a moderator to:
	   - insure this use;
	   - minimize the number of messages;
	   - remove items meant for the list's -request address;
	   - forward items that should have been sent to another list.

    There may be a delay of up to 3 days for your message to be sent on
    L-act, so plan ahead for volunteer requests.

    League-tactics@prep.ai.mit.edu is for discussion of LPF directions and
    is not moderated.

    If you want to subscribe, change your eddress (email address), or be
    removed from either list, please use:

    or      league-tactics-request@prep.ai.mit.edu

		   <><><>Apple-Microsoft/HP suit news<><><>

    This spring, most of Apple's case against Microsoft and Hewlett
    Packard was dismissed by the judge.

    The partial decision dropped the case against Hewlett Packard.  It
    also dropped most of the case against Microsoft, but not all.

    The reason given by the judge was that Microsoft's old contract with
    Apple gave Microsoft the right to do most of the things covered by the
    suit.  The judge did not rule on the question of whether the style of
    a user interface can be copyrighted at all, so the decision would have
    no effect if Apple (or someone else) were to sue someone other than
    Microsoft in the exact same way.

    A few weeks ago a story circulated on the Internet that the partial
    decision in the Apple versus Microsoft case had been withdrawn.
    According to Microsoft, this was untrue; the partial decision still
    stands.  However, we cannot regard it as final, since Apple will
    probably appeal.

    Addendum: Apple asked the judge to reconsider his partial decision and
    he agreed to reconsider.  So it's possible the decision will be
    changed by the trial court.

       <><><> LPF Boutique: Materials Available from the League <><><>

	Please send your order to the League address on the first page
	 We have reprinted the famous ``fanged apple'' buttons.  These
    buttons show the symbol of Apple computer with an alien snake's body
    and face.  You can buy buttons by mail from the League, for $2 each,
    in quantities of at least three.  We give out buttons at events, but
    ask for a donation.
	 We also have stickers showing Liberty Empowering the Programmer,
    with the League's name and address.  You can order stickers by mail
    from the League at $5 for 10 stickers; for larger orders, phone us to
    discuss a price.  We hand them out free when it is convenient, such as
    at our events, but since mailing packages to individuals costs money,
    we want to make it an opportunity to raise funds.
	 Post stickers at eye level and separated from other posted
    articles, to make them easy to see.  The stickers are not made to
    survive rain.
			      Liberty Postcards
	 We also have postcards showing Liberty Empowering the Programmer,
    with the League's name and address.  Same terms as the stickers.
			    Large Liberty Posters
	 We have a few posters with the same image that is on the
    stickers, approximately 2.5 ft by 1.5 ft.  They are $4 each and $4
    total shipping and handling in the US for the first one to five
    posters, and $2 for each additional five.
				 Coffee Mugs
	 Our coffee mugs have the Fanged Apple design in full color on one
    side and ``League for Programming Freedom'' on the other.  They hold
    twelve ounces and are microwave safe.  You can order a mug for $15,
    nonmembers $17, plus $3.00 shipping and handling.  They are now in
    stock.  Note the price increase.
	 Michael Ernst has produced t-shirts with Liberty and ``League for
    Programming Freedom'' on the front and ``Innovate, Don't Litigate'' on
    the back.  (The back slogan will change from time to time.)  You can
    order shirts by mail from the League for $10, nonmembers $12, plus $2
    for shipping and handling.  Available colors are yellow, blue and
    peach; if you specify a color, we will assume you would rather have
    the other color than no shirt.  If you want a chosen color or nothing,
    say so explicitly.  Please specify the shirt size!  (M, L or XL.)
    We are temporarily out of XL shirts, but are getting some back from a
    member who had volunteered to sell some and sold a dozen.
		       Position Papers and Memberships
	 We will send anyone a copy of the League position papers.  If you
    want other copies to hand out at an event, we'll send you as many as
    you need.  Please discuss your plans with us.  One-year memberships
    are $42 for professionals, $10.50 for students, and $21 for others.
    The dues are $100 for an institution with up to three employees, $250
    for an institution with four to nine employees, and $500 for an
    institution with ten or more employees. For $5000, an institution can
    be a sponsor rather than a member.  We have 10 inst. members, now.
			     League Papers Online
    You can retrieve LPF written materials by anonymous ftp from
    prep.ai.mit.edu in the directory /pub/lpf.  These include the position
    papers, membership form, handouts, friends of the court briefs, and
    articles about the LPF's issues of concern.
			    League Video Cassettes
    We have video tapes of some of Richard Stallman's speeches for the
    LPF.  If you'd like to give LPF speeches, we can send you copies of
    these tapes to give you an example to learn from.  If you'd like
    copies for another purpose, we can send them for $20 each. <><><>

	   <><><> End of June 1992 Programming Freedom <><><>