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Comment by jsharpe | Hacker News Reader

While copyright does last for 70 years, it doesn't seem all that useful to software developers. After all, if the idea behind a piece of software is not protected, it is a relatively simple matter to rewrite it (if given the idea).

That said, an end to software patents would be welcome indeed. I wonder if this would have any impact on the H.264 patent?

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Actually that very much scares me. What's to prevent any company from copyrighting a small passage of code and then rigorously suing everyone and their brother for it? At least with patents you can claim prior art.

IANAL, but copyrights also differ from patents in that you have to show intentional imitation, not just similarity. Since prior art would reasonably prove that couldn't have copied something, this would imply that this avenue of defense is strictly stronger than the prior art defense against patent litigation. Some quotes from Wikipedia (with the usual caveats):

> "... two authors may own copyright on two substantially identical works, if it is determined that the duplication was coincidental, and neither was copied from the other."

> "Infringement requires... that the defendant copied the protected work... if two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying."

You should really look into what can actually be copyrighted before getting too alarmed. The tactic you suggest would be the same as trying to copyright the phrase "it was a dark and stormy night..." and suing anyone who used it. If they use only that phrase then you might have a case, but if the phrase was incidental to a larger work then the case is weaker. No one is going to get away with copyrighting for loops or various standard design patterns.

Source code is already copyrightable and this doesn't seem to be an issue.

"What's to prevent any company from copyrighting a small passage of code and then rigorously suing everyone and their brother for it?"

Independent creation is a strong defense to copyright infringement. Compaq famously did this when they duplicated the functionality of the original IBM PC firmware, by using a strict "clean room" process. Even though numerous segments of code were no doubt duplicated, because there is often a single best way of writing hand-optimized assembly language, the provable independent creation made it a new work under copyright law. As far as I remember, IBM didn't even bother to sue.

I wonder if this would have any impact on the H.264 patent?

I suspect it would still apply to hardware implementations of the codec.

Yeah, although hardware acceleration implementations would be paid-up in the per-unit costs when the hardware ships (at least AFAIK), making it effectively invisible to the end-users and developers. I think this would be sufficient to push H.264 as the HTML5 video standard across the board.

Depends how high the license fees are. Something like $10 on a budget graphics card or low-end cellphone would be very significant.

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