COMPUTER LAW
A Guide to Cyberlaw and Data Privacy Law
Volume 3
David Bender
Dobbs Ferry, NYQUESTIONS ABOUT THIS PUBLICATION?
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A COMPLETE SYNOPSIS FOR EACH CHAPTER APPEARS AT THE BEGINNING OF THE CHAPTER
COPYRIGHT PROTECTION
OF SOFTWARE
SYNOPSIS
Although the Supreme Court has not yet spoken, the consensus is that programs are copyrightable, that copyright extends to source and object codes, system and application programs, and that a chip or disc embodying object code is a copy.
Most, if not all, of the issues impacting copyright protection of programs are unsettled. Despite the cascade of cases in the past few years, there is no uniformity of judicial thinking on even those issues reached. Moreover, to the extent agreement seems to exist, in some instances it may be skin-deep, for as detailed rationale is probed, dissimilarities may appear.
The weight of what judicial authority exists is to the effect that programs constitute copyrightable subject matter; that copyright extends to object as well as source code; that system, as well as application programs are copyrightable; and that a ROM or disc embodying object code constitutes a copy, and is subject to copyright law. None of these issues has reached the U.S. Supreme Court.
SOFTWARE INFRINGEMENT AND MAINSTREAM COPYRIGHT LAW
This article is directed to the protection of computer programs by means of copyright, and specifically to the infringement issue. Where are we, where have we been, and where are we going?
In exploring these questions, I propose first to identify what I see as the major problems in this area. Next, I want to comment briefly on the light shed by the cases. And finally, I want to offer my own conclusions as to where all this leaves us.
In applying copyright to programs, there are two related problems, often confused with each other. These are the idea/expression problem and the use/copying problem. As its name indicates, the first of these goes to the issue of where ideanot protectable by copyrightends, and where expressionprotectable by copyrightbegins. In the program scenario, this is not an easy line to draw. But while this problem may be more apparent in the program area than in most others, it is far from unique to programs and indeed is generic across the broad spectrum of copyrightable subject matter. For example, how close to the detailed plot of a book can one tread without infringing the copyright in the book?
So drawing the line in the program milieu, is conceptually the same as it is in the case of other types of copyrightable works. However, for programs it may be more difficult to make the actual determinations necessary to decide particular cases. Perhaps this is partly due to the nature of a program. It is certainly due to the unfamiliarity which most judges and juries have with programs. What do the cases say?
A good starting point here is the Whelan decision handed down last year by the Third Circuit. To be sure, it displays a certain degree of vagueness and imprecision in discussing some technical points necessary in drawing the line. It also adopts a stilted view of what constitutes the idea to be distinguished from expression under copyright law. But Whelan adopts a very useful tool in making its idea/expression distinction: It sets forth the various steps involved in creating a program, from problem identification through coding and beyond. Such a progression, with each step embodying more detail and precision than the one preceding it, is critical to developing a basis for drawing the line.
