joegratz.net

Long-time intellectual property gadfly Greg Aharonian has filed Aharonian v. Ashcroft (N.D. Cal., Case No. 5:04-cv-05190), apparently seeking a declaration that software copyrights are unconstitutional or otherwise invalid. (I can’t say for sure, since the complaint isn’t up on PACER yet; I’m going on this Reuters report.)

He’s been making these arguments on various IP listservs for years, and has a lot of expertise for a non-lawyer. Whether he’ll be able to navigate the vagaries of constitutional litigation pro se is uncertain, though he did write this do-it-yourself guide to filing constitutional cases.

He appears to be arguing that copyright laws, as applied to software, are void for vaugeness and thus unconstitutional under the Due Process Clause. This is not a winning theory. Just because the Supreme Court hasn’t yet decided which infringement test (Whelan or Altai or something else) applies for computer software doesn’t mean we’re completely at sea. I’ll be interested to read the complaint when it’s available.

UPDATE: The complaint is available. It’s no better than expected. Unsurprisingly for a pro se constitutional litigant, his complaint is long on argument and short on factual allegations. And his theory — that software copyright is void for vagueness — is simply not going anywhere. Just because the applicable tests are confusing and often require expert testimony doesn’t mean they are unconstitutional. I like his idea of filtering patentable material, though constitutional litigation is not the forum in which to have such a rule implemented. (Also, note to future pro se constitutional litigants: don’t make up your own citation style. It just reminds us you’re not a lawyer every time you cite to authority.)