Intellectual Property Law in Source Code Reuse and Remix - Finding Source Code on the Web for Remix and Reuse - page 310

Ana is writing an application using Microsoft Foundation Class library and wants to create
a resizable dialog box. She wants to find an example that includes source code and property
pages. She goes to www.codeproject.com , a site for programmers to share tips, code, and
answers with each other. She performs a search and one of the results was exactly what
she was looking for. The sample code is so good that when it comes time to implement the
resizable dialog in her own application Ana copies and pastes several lines from different
parts of the example.
In this scenario the author is the original programmer who posted the code on
the website and the work is the section of code that Ana copied. We will call Ana's
program the derived work. The original programmer is able to restrict who uses
the work and how that work can be used. The monopoly granted by copyright law
excludes others from using his work without permission for a specific period of time.
The public interest in intellectual property is the ability to freely utilize and improve
upon previous discoveries which is why after a period of time the monopoly ends
and the work enters into the public domain.
16.3.1 Algorithms
Algorithms, as a kind of mathematical formula, are not protected. However, they are
protected as a literary work. Furthermore, IP law protects expressions but not ideas.
As you can see, whether a particular piece of code is copyrightable and whether a
particular act of copying infringes on that right needs to be decided by a judge on
a case-by-case basis. Consequently, our thought experiment seeks more to explore
specific questions than to scrutinize principles in general.
In general, the U.S. Court of Appeals for the Federal Circuit takes an enlightened
approach to evaluating copyright claims in software, using a Abstraction-Filtration-
Comparison test. When hearing a software copyright case, they will decompose the
alleged derived software into parts where infringement is claimed and parts where it
is not. For the parts that have claims against them, the court will look at the original
work and determine whether (i) copying has taken place and (ii) whether any incre-
mental creativity has been added [ 6 ]. Looking at functionality and expression, courts
have determined that, while some aspects of software code are afforded protection,
certain implementations are not (Lotus Development Crop. v. Borland Int'l, Inc, 516
U.S. 233) [ 2 , 3 ]. In this vein, the European Court of Justice recently ruled that APIs
and other functional characteristics of software cannot be copyrighted [ 13 ].
In our thought experiment, we would argue that the code copied does not con-
stitute an algorithm a business process. Furthermore, the lines that Ana is copying
don't increase the functionality in her program in any significant way.
16.3.2 Fair Use
US Copyright law also sets out Fair Use provisions that allow use of copies with-
out permission for purposes such as criticism, comment, education, and parody.