On January 3d, Judge Marilyn Patel of the Northern District of California (of Napster fame), handed down an opinion in Aharonian v. Gonzales, a pro se case brought by Gregory Aharonian seeking declarations that (1) computer source code consists entirely of algorithms and data structures considered by him to be unprotectible ideas or processes under 17 U.S.C. 102(b); (2) that "idea" and "expression" are unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment; and (3) that software is not covered by the Copyright Act.
Aharonian's interest (and what gave him standing, the court found, rejecting the Government's challenge on that point), was his development of an automated prior search tool that will assist in finding relevant prior art so that people may avoid patent and copyright infringement. His tool is to consist of three parts: (1) an expert system containing a programmatic representation of patent and copyright law; (2) a database of existing source code; (3) an analytical tool applying (1) to (2) to determine the likelihood of infringement or invalidity.
Judge Patel was troubled by the generalized nature of the attack on all software as consisting of ideas or algorithms. Relying, interestingly, on among other sources, Wikipedia, she noted the choices available to programmers in expressing their ideas, and on that basis rejected Aharonian's across-the-board challenge, further holding that if Ahaonian "copies source code that is protected by copyright law, he infringed the copyright regardless of whether the ideas underlying the source code are patentable."
The attack on idea (and "expression") as unconstitutionally vague was rebuffed with a flourish: while the terms are inexact, "the fact that words in a statute require a certain degree of judicial interpretation is not merely permissible -- it is bedrock assumption of our common law system."