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protection of computer software

Notes:
    Defining computer software. Functions produced in source code. Translated by computer into object code. User perceives interface (screen display and functional capacity).

    Constitutional limitations. Writings and not "useful things."

    Programming languages are something equivalent to spoken languages. There is variety and custom and all languages have a limited audience.

    It's easy to copy software programs. Present public goods issue: once released to the public, it can be duplicated at no cost and so supplier can't demand marginal price. The threat to software developers comes from both corporate rivals and the home copyist. But software industry is thriving despite the lack of real response to home copying.

    Lack of Congressional actvity. First action was to create a commission to study the protection of computer software. CONTU formed in 1974. Major concerns were databanks and photocopying. Software was something of an afterthought. Drafted s117 (adopted by Congress).
    DZ: Time lag problem evident here.

    Remember that floppy disks were less durable than there are today. Customer could lose investment in software if not for back-ups. Archival use recognized in s117. Statute does not contemplate storing computers on the computer's hard drive (so floppy back-up might be second copy). Also, s117 recognizes customer's right to make minor adaptations.

    MIA v. Peak (9th Cir.) diagnostic software loaded into machine's RAM to service. Computer that sold software sues for infringement when rival service center make copies on computer. Wins, making temporary RAM copy is enough. Consider how this relates to storage of infringing information into the cache when using the internet.

    Note the backdrop of corporate strategy. IBM decision to authorize clones, MAC's attempt to secure own market. Cases mostly involve corporate litigants. Price v. product competition. Competition for add-on software market.

    Remember Baker v. Selden.
    DZ: It runs around like a 900 pound gorilla.

    The problem is difficult because software is a hybrid between author and computer.

    Does concentration in the software market demand a particular operating system? It's a merger issue that Franklin makes. Court says it's a competitive issue where Franklin trying to take software market Apple created. It points out how users gain familiarity with system and don't want to switch systems; there's competitive efficiency in allowing people to switch paths, (path dependency issue). Some expression become functional because markets adapt to a particular protocol.

    Note that early software designers tried to user technological fixes to prevent piracy. It parallels encryption on the web to protect displays. Once software set to copy once (and consumers backlashed).

    Effort to ammend the Uniform Commercial Code to make shrink-wrap licenses enforcable. Early shrink wrap licenses ruled unenforcable as modifications without consideration. Legislative amendment would make license agreement a more direct avenue to claim of copyright protection. Is this a private law usurpation of public copyright law?
    DZ: Interesting 7th Circuit activity in this area.

    Note how broad changes in copyright law possible. Rejection of labor theory in FEISS in example.

    Second generation software cases. WHELAN, ALTAI are examples of an issue beyond FRANKLIN. The look and feel of software at issue; beyond literal copying of object code. Reminiscent of earlier cases: New Yorker cover and Moscow on the Hudson.

    Many ways to program particular result. But one method might be more elegant and efficient.

    Compare Learned Hand's abstration analysis for similariteies to approach of the WHELAN court. Abstraction test used to identify purpose or function of the work. Other elements are protected. Is structure similar on the level of underlying subroutines, etc.? Note that competitors may have to designed new ways to achieve the program's purpose, beyond simple avoiding prior written code.

    BE: If you believe in computer language, you know there's merger.

    Note how tough the Second Circuit is on imaginative works. Many works are held infringement even though many elements are different.

    User interface cases. At one point, courts questioned the copyrightability of screen displays. Issue arose first with video games. The audiovisual element is transitory (never fixed) and controlled by the user or random internal process. Courts held protectable even though you can't find pac-man in the program. BORLAND questions whether the interface is simply a tool by which the user related to the machine, like the stick shift of a car.

    Note how consumers get used to using a particular interface and get locked-in to using a particular program. This has an anticompetive effect and gives a company a monopoly advantage. Perhaps the interface screen, like a video game screen, is the visual, traditional subject matter of copyright. But don't want to exclude competitors from making rival programs; this is issue in the SPREADSHEET cases.

    Note 1st Circuit's BORLAND decision went to Supreme Court which split 4-4, affirming the Circuit Court decision.

    In LOTUS, there's clear evidence that Borald copied. Court then considered whether there are many alternate ways to express same items on the interface: like alternate words for user commands.

    Note competitive background to LOTUS v. BORLAND. Borald made several revisions during the course of the litigation to avoid adverse judgements. Also it caused intensed price competition between the companies which hurt them both terribly. Judges hesistant to allow company exclusionary advantage through copyright.

    In some case, copyright awarded to later authors who make an improvement on work in the public domain. The problem this raises is the devirative works might limit works evolving beyond public domain works. Perhaps innovation in expression requires freedom to create by incremental steps.

    Note how computer technology, both processing power and interconnection, has made copying easier and perhaps a bigger threat to copyright owners. The basic problem of home copying is somewhat lost in cases litigated between large corporate software producers.

    Relevant issues for determining whether party that distributes infringing works infringes on copyright:
    • knowledge of infringing activity
    • substantial participation
    • right and ability to control
    • direct and financial benefit.
    Legal theories for argument include contributory and vicarious liability. This comes from RELIGIOUS TECHNOLOGY CENTER v. NETCOM ON-LINE COMMUNICATIONS SERVICES, INC. (N.D. CA, 1995)


Issues:
    What law should protection computer software? Is copyright appropriate?

    Is computer software function and subject matter of patent law, not copyright? In early cases, copyright office followed "rule of doubt" to allow registration. In 1980s, law clarifies. (US 1991) (computerized program protected). Patent standards might be too high for developers of many software programs (valuable but not novel).

    At what point does code cease to be a writing? Consider translation of source code into object code for the processor. Perhaps at some point the code is functional; justto instruction a machine. Does it matter whether object code is installed on the machine, rather than as application on disk? What about the interface? The audio-visual element is produced by writing; does that present the same issue as object code? Is an alternate function to produce same user interface an infringement? This is what is going on in the spreadsheet cases.

    What's the best analogy to understand a computer's comilier? Is it like a foreign language translation? That's what court holds in APPLE COMPUTER v. FRANKLIN.

    Major questions in these cases: 1) What elements are copyrightable? 2) What constitutes infringement? How close can software developers resemble? 3) Some protected element that transcends the three levels [object]-[source]-[interface] that is protected?

    Is there a difference between an operating system and an application? Consider that computers once ran on operating system inserted on floppy disk. Also consider the expansion of operating system functionality. Compare to other sources of digital information; a compact disk communicates music user can hear, while operating system mostly communicates to processor (but also produces an interface).

    Is computer program translation comparable to translating written language? It's not a straightforward process, the translator can't go line-by-line. This comes up in the WHELAN case. At what level is the idea/function fixed?

    Should courts analogize computer programs to creative works? Is a program like a novel? Compare to NICHOLS v. SHELDON (?). According to WHELAN, programs are creative and presumptively protected. But ALTAI does not seem to accept that programs are creative (so programs receive a lowed level of protection). The circuits seem divided over the issue of functionality.

    What approach sets better incentive? Should original designer have a protected opportunity to profit? Is there a danger of bad knock-off programs? Is there are large fixed investment in research and development that requires a copyright monopoly because the market can't set effective price.

    Is the object-source code distinction stable over time? Processing capacity continually added to hardware. Source code operates on higher level in succeeding generations of software.

    Are patents available to software designers? Patents are difficult to get. Copyright might be preferrable: broader protection of elements for a longer period of time. Lower burden of proving novelty.

    At some point does an expressive interface become standard function? Consider how consumers stick to familiar programs.

    Computer technology also used for detecting infringing uses. Also to prevent someone from using a picture or file on the web. Does this practice threaten the fair use doctrine? Or do downloaded copies need to be controlled because the user might have the ability to retranmit. Does technology enable the licensing process?

    Will the internet swallow national copyright law? If information can quickly and easily be transmitted across national boundaries, can nations maintain divergent standards of copyright protection?


Statutory References:
    s109: (no software rentals, limit on first sale doctrine)
    s117: Limitations on exclusive right: Computer programs.
Illustrative Cases:
    Davidson & Associates v. Jung (8th Cir. 2005) (Full Text - PDF)
    Defendant online gaming service may not circumvent plaintiff's copyright protection systems to "reverse engineer" competing games in violation of the license agreement and terms of use it agreed to, thereby waiving its fair use rights, in accessing the games online.

    Apple Computer, Inc. v. Franklin Computer Corp. (3d Cir., 1983)
    Franklin attempts to launch clone of the Macintosh computer. The literal components of computer software, like source code and hardwired instructions, are analogous to literary expression and enjoy strong copyright protection. Rejects Franklin's interoperability (merger) argument. Set a broad standard of protection for software (not dependent on how software gets used).

    Whelan Associates v. Jaslow Dental Laboratory, Inc. (3d Cir., 1986)
    Plaintiff made software program to handle business of dental office. Defendant translated the program into new language and sold. Court held the tranlation violated the plaintiff's right to make derivative works. Look and feel important. The structure, sequence, and organization of a computer program are analogous to protectable literary devices and are copyrightable.

    Computer Associates International, Inc. v. Altai, Inc. (2d Cir., 1992)
    Former employee embeds program of future program with code made for former employer. Then section lifted redesigned to achieve same purpose by different code. Doesn't follow WHELAN, inquiries into the source of the similar look and feel between two programs. Abstraction and filtration applied. Some elements dictated by efficiency; there are stock elements; some ideas are in the public domain; those elements should not be protected.

    Apple Computer, Inc. v. Microsoft Corp. (No. Dist. CA, 1992)
    The "look and feel" of the Macintosh computer's "audio-visual" display is the subject matter of copyright law. Elements of the display that are dominated by functional concerns should not be compared for substantial similarity. Evidence of plaintiff's prior influences are indicative of lack of original authorship. Some discrete elements of the Macintosh interface are protected by copyright: zooming rectangle windows and ico signifying trash.

    Lotus Development Corp. v. Borland International, Inc. (1st Cir., 1995) (Full Text - Kuester Law Offices)
    A spread sheet program's menu command hierarcy is not copyrightable subject matter because it is a "method of operation" as described in s102. Without these instructions a user cannot operate the record keeping system. The concurring opinion of Judge Boudin is interesting. He writes, "For me, the question is not whether Borland should prevail but on what basis. Verious avenues might be traveled, but the main choices are between holding that the meno is not protected by copyright and devising a new doctrine that Borald's use is priveleged." Standard expressive patterns should not be protected (like the QWERTY keyboard).

    Religious Technology Center v. Netcom On-Line Communications Services, Inc. (No. Dist. CA, 1995)
    The court holds that "where a BBS operator cannot reasonably verify a claim of infringement, either because of a possible fair use defense, the lack of copyright notice on the copies, or the copyright holder's failure to provide the necessary documentation to show that there is a likely infringement, the operator's lack of knowledge will be found reasonable and there will be no liability for contributory infringement for allowing the continued distribution of the works on its system."