Change the future

Saturday 10:50 a.m.–11:20 a.m.

Python's Law

Stephen McJohn

Audience level:


Open source software is changing intellectual property law. The talk would cover recent cases on what elements of software may be copied without infringing copyright, the scope of software patents, enforceability of licenses, damages for copyright infringement,
and how the network of community support for projects such as Python may be more potent in litigation than a patent portfolio.


Several recent cases affect open source software, and also reflect the influence of open source on intellectual property law.

Oracle v. Google: Oracle alleged copyright and patent infringement of Oracle’s rights in Java, by Google in making Android. Of millions of lines of Android code, only this was copied line for line: private static void rangeCheck(int length, int fromIndex, int toIndex) { if (fromIndex > toIndex) { throw new IllegalArgumentException( "fromIndex(" + fromIndex + ") > toIndex(" + toIndex + ")"); } if (fromIndex < 0) { throw new ArrayIndexOutOfBoundsException(fromIndex); } if (toIndex > length) { throw new ArrayIndexOutOfBoundsException(toIndex); } }

Google did copy the functionality of the Java application programming interfaces, but used a clean room to reverse engineer the processes, as opposed to copying Java code. This was held not to infringe copyright, a landmark ruling for latitude in copying functionality in software – key for many open source projects (e.g. WINE’s implementation of Windows functionality). This case gives Python developers more room to operate.

Eolas: An inventor may also be barred by the work of others. Eolas held a patent that covered basic internet technology, the browser. A number of companies bought licenses from Eolas or settled litigation (most notably, Microsoft). In 2012, however, a jury found the patent invalid. Experts including Tim Berners Lee, the very inventor of the World Wide Web, had testified at trial that similar technology (such as the Viola browser) had been in public use before Eolas developed its browser. This case also shows how open source, through its network of supporters, may be resilient than proprietary software companies (despite their deeper pockets) against dubious software patents. Open source projects, including Python, have a wealth of experience that may be as valuable as a defensive patent portfolio.

Jacobsen: This case established the enforceability of open source licenses (in a model train software case). Royalty free does not give impunity to ignore open source restrictions.

CyberSource Corp. v. Retail Decisions Inc: The courts are drawing limits on the patentability of vaguely defined software methods. In a later case, the patent appeals court stated that software will be valid unless “abstractness exhibits itself manifestly”, a rule that raises some questions.

Myriad: The issue here is the patentability of human genes – but also the patentability of software methods to analyze genetic sequences. An important case, which may be in front of the Supreme Court by the time of Pycon 2013 – and if not, still provides key precedent about whether patents can control the flow of information.

Tenenbaum: upheld statutory damages of $675,000(!) for downloading 22 songs, which has considerable implications for software development.

Tetris Holding, Inc.: Tetris held expressive, not just functional, and so copyrightable. An interesting comparison to Oracle v. Google.

Apple Inc. v. Psystar Corp. Psystar was enjoined from building and selling computers running Snow Leopard. This case is a mixed bag. It restricts one type of open innovation. But by upholding restrictive software licenses, it gives strength to the enforceability of open source licenses.