Can I infringe on copyright “from memory”?
My previous post brought up another interesting line of thought I've been mulling over lately. Magazine X publishes a photo spread of a pretty girl in a themed setting. (That the girl was mostly naked isn't important, but this is an actual case concerning a couple of "men's magazines," back in the '90's, IIRC.) Magazine Y sees that spread, thinks it's pretty nifty, and has their crew find their own pretty girl, build their own similarly themed set, and publish their own photo spread that looks much like the original, down to the poses and camera angles. The court ruled in favor of Magazine X... Magazine Y had intentionally infringed on their copyright by "reproducing" their artistic work, even though there was no mechanical "copying" involved.
Hm. Okay, so five years ago, I was working for Company B and I wrote a lot of utility code in the five years I was there. So I moved to Company E, and I quite wisely took none of the code I wrote for Company B with me because that would have been illegal. (Note: This is a fictionalized account of my career.) But here in Company E, I find that I need a script that backs up a server. I wrote one for Company B, but I can't legally reuse that code at Company E (if I had a copy of it), because the copyright for that code belongs to my former employer. So I decide to write that code from scratch. Yet... based on my personal coding style, form following function, and having actually written a solution for this exact problem once before, the code I write for E is very, very similar to that which I wrote for B.
Setting aside the unlikely event that anybody would realize that I did this, is that copyright infringement? In light of the photo infringement above, it seems to me that this is basically the same thing. I recalled the copyrighted work that someone else owns and attempted to reproduce it, claiming ownership of the reproduction for my new employer.
I think this happens on a practical basis regularly in computing, but we don't really think about it. Yet I think, technically, it's a violation of copyright. Imagine a world in which a software developer not only had to deal with "non-compete clauses", but had to deal with not being able to reproduce any code he has written in the past for another employer. That would certainly "break" the development world. Previously, I mentioned that I feel like a lot of my utilities and code snippets are the embodiment of my programming knowledge... this is the converse (inverse?) situation. When I write that backup script, I'm not copying a previous work, I'm embodying my knowledge in physical form. Is there really a difference between my writing a shell-script menu loop from memory and copying that menu loop from a library snippet? I don't think so... except the latter is faster and less error-prone, therefore more pleasant for me as well as cost-effective.
I consider programming to be capable of "artistic expression". A good programmer recognizes and delights in elegant code and elegant solutions. But I'm not convinced that all code should be subject to copyright in the way that fiction, non-fiction, music, etc should be. At a basic level, we have a "useful article" issue... the pattern for a basic kitchen chair is not subject to copyright, because a chair is a functional article, a "useful object", and copyright does not allow for protection of function, only expression.
There is only one way to write a Bash for-loop. The variable name can change, the data looped over can change, and the steps between the top and bottom of the loop can change... but the basic structure of how a for-loop works is fixed. Nobody can claim copyright over it. At what point does your "useful article" for-loop quit being "common" and become a protected "expression"? This starts to feel more like patent territory than copyright... at what point is a program innovative enough that it's not unintentionally reproducing hundreds of other programs written in the same situations? When is it not just a "dump" of programming knowledge but an actual novel creation?