Software Copyright Victor H. Bouganim WCL, American University.

Software CopyrightSoftware Copyright

Victor H. Bouganim

WCL, American University

Victor H. Bouganim, WCL, American University, Spring 2001

Digital WorksDigital WorksWorks in Digital Form

Database

Software

e.g.: audio CD; WP document; image file etc..


Software DevelopmentSoftware Development

Design

Coding Source Code

Object Code

Compiling


International Software CopyrightInternational Software Copyright

Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention…

TRIPS, Art. 10.1

Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.

WCT, Art. 4


Scope of International Scope of International Software ProtectionSoftware Protection

Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention.

Such protection applies to computer programs, whatever may be the mode or form of their expression.

WCT, Agreed Statement

Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

WCT, Art. 2


Copyright for programs as literary works: – normal copyright rules apply– includes ‘preparatory design materials’– no protection for ideas or principles

Users’ rights:– back-up copies– error correction

Decompilation \ Reverse Engineering:– for obtaining ‘interoperability’

EU Software Directive - EU Software Directive - 19911991


USA Software CopyrightUSA Software Copyright

A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

[Copyright Act 1996 17 USC 101 as amended in 1980]

§ 117: Limitations on exclusive rights– archival purposes– essential step in the

utilization of the computer program in conjunction with a machine and that it is used in no other manner.


Scope of Software CopyrightScope of Software Copyright

Protection for

Literal Elements of Program Code

Protection for

Non-literal Elements of Program Code

Protection for

Functional Elements and Protocols

Protection for Program Outputs:

User Interfaces


Software Copyright CasesSoftware Copyright CasesCase Law Landmarks

– Whelan v Jaslow (3rd Cir. 1986)

– Computer Assoc. v Altai (2nd Cir. 1992)

– Lotus v Borland (1st Cir. 1995)

– Apple v Microsoft(9th Cir. 1994)

Old tests– “Look & Feel”– SSO

Sequence, Structure and Organization

New test– AFC

Abstraction Filtration Comparison


Protection for Literal Protection for Literal Elements of Program CodeElements of Program Code

First generation of cases involved direct copying of the program code

Accused infringer takes actual text of work, not merely structure, organization or output

Disputed issue was whether computer programs could be protected by copyright

By the 1980s, computer programs were copyrightable: A settled issue.


Protection for Nonliteral Protection for Nonliteral Elements of Program CodeElements of Program Code

Second generation of cases raised issue of whether competitors may copy other elements of a computer program, such as the program’s underlying structure, sequence, or organization

Copyright protection may extend beyond the literal elements of a work


Whelan Associates v. Jaslow Dental Lab.Whelan Associates v. Jaslow Dental Lab.Third Circuit (1986)Third Circuit (1986)

Issue: whether the structure, sequence, or organization of a computer program is protected by copyright, or whether the protection extends only to the literal computer code

Court’s rule: “where there are various means of achieving the desired purpose, then the particular means chosen is not necessary to the purpose; hence, there is expression, not idea”-- expression is protectable

Court holds that copyright protection of computer programs may extend beyond the programs’ literal code


CLASS DISCUSSIONCLASS DISCUSSION What does the court

see as the most time-intensive and costly stages in the development of application programs?

What is the protectable expression in the Dentalab program in Whelan Case?

What is the unprotectable idea of the Dentalab program?


Computer Associates Int’l v. AltaiComputer Associates Int’l v. AltaiSecond Circuit (1992)Second Circuit (1992)

Both parties marketed a computer program that performed similar functions.

Although Altai’s first version of the program had directly used significant parts of CA’s code, the second version contained no code in common with CA’s version.

Issue: how far copyright protection should be extended to the non-literal elements of a program

Court developed three stages of analysis in narrowing the scope of protection for non-literal elements:

– Abstraction– Filtration– Comparison


STEP 1 - ABSTRACTIONSTEP 1 - ABSTRACTION “At the lowest level of abstraction, a computer program may be

thought of in its entirety as a set of individual instructions organized into a hierarchy of modules. At a higher level of abstraction, the instructions in the lowest-level modules may be replaced conceptually by the functions of those modules. At progressively higher levels of abstraction, the functions of higher-level modules conceptually replace the implementations of those modules in terms of lower-level modules and instructions, until finally, one is left with nothing but the ultimate function of the program…At low levels of abstraction, a program’s structure may be quite complex; at the highest level it is trivial.”


STEP 2 - FILTRATIONSTEP 2 - FILTRATION

Elements Taken from the Public Domain

Elements Dictated by Efficiency

Elements Dictated by External Factors– Mechanical specifications– Compatibility requirements– Manufacturers’ design standards– Industry demands – Widely accepted

programming practices


STEP 3 - COMPARISONSTEP 3 - COMPARISON

After filtering out non-protected elements, examination of

remaining “core of protectable expression”

Application of normal “substantial similarity” copyright test

Policy Considerations– Incentive for future

computer program R&D

– Rewarding creativity– Free use of non-

protectable ideas and processes


CLASS DISCUSSIONCLASS DISCUSSION How would the

Whelan case have come out under the Altai test?

Is there a more appropriate way to distinguish idea from expression with regard to application program code?

Which approach--Whelan or Altai--conforms better with Section 102(b) and Baker v. Selden?

Does the holding suggest that programs with relatively little protectable material can be freely copied?


Protection for Functional Protection for Functional Elements and ProtocolsElements and Protocols

This set of cases involves the taking of particular pieces of a program, including attempts to “clone” a program by writing new code to create a functionally equivalent program, or attempting to reproduce an internal program interface necessary to make two programs compatible

These cases raise the issue of whether functional elements are protectable


Lotus Development Corp. v. BorlandLotus Development Corp. v. BorlandFirst Circuit (1995)First Circuit (1995)

Borland copied the Lotus 1-2-3 menu command hierarchy into its Quattro electronic spreadsheet program

Issue: whether a computer menu command hierarchy is copyrightable subject matter

Borland contends that the Lotus menu command hierarchy is not copyrightable because it is a system, method of operation, process, or procedure foreclosed from protection under Section 102(b)

The court holds that the menu command hierarchy is a “method of operation,” and thus uncopyrightable


CLASS DISCUSSIONCLASS DISCUSSION Is the holding in

Lotus incompatible with Altai’s test?

Do the Altai and Lotus cases really present analogous issues?

Should a customer’s preference for a known, trusted product, such as Lotus 1-2-3, be part of the reward that a copyright owner is entitled to reap?


Protection for Program Protection for Program Outputs: User InterfacesOutputs: User Interfaces

Source and object code are protectable as literary works; screen displays -- the output of the computer program -- are protectable as audiovisual or pictorial works

User interfaces -- the screen displays that mediate the input to and output from a computer program, and that are governed by market standards and functional considerations

Issue: what portions of a user interface are copyrightable expression?


Apple Computer v. Microsoft Corp.Apple Computer v. Microsoft Corp.Ninth Circuit (1994)Ninth Circuit (1994)

Issue: whether certain minor parts of the Windows interface were virtually identical to the Apple Graphical User Interface (GUI)

Apple argued that the District Court erred in dissecting Apple’s works so as to eliminate unprotectable elements from comparison with Windows, and thus using a standard of virtual identity rather than substantial similarity

Court holds that considering the limited number of ways to express the idea of Apple’s GUI, only “thin” protection, against virtually identical copying, was appropriate


Reverse Engineering - 1Reverse Engineering - 1 “Starting with the

known product and working backward to divine the process which aided in its development or manufacture.” Kewanee Oil (1974)

Two Phases:– Disassembly or

decompilation of a program in order to create human-readable source code that may be analyzed

– Using the results of this analysis to create a commercially viable program


Reverse Engineering - 2Reverse Engineering - 2EU Directive – Art. 6 Decompilation is

permitted for obtaining information to achieve

inter-operability– Lawful user– Independent program– Unavailable information– Restrictions of use and

information transfer

USA – Case Law Fair Use ?

– CA v Altai, 2nd Cir., 1992– Sega v Accolade , 9th Cir. 1993– Sony v Connetctix, 9th Cir., Feb

2000 Policy Considerations

– Promoting competition– Unfair competition– Public interest


Sega Enterprises v. Accolade, Inc.Sega Enterprises v. Accolade, Inc.Ninth Circuit (1992)Ninth Circuit (1992)

Accolade reverse engineered Sega’s video game programs and created its own games for sale for use on Sega’s systems.

Accolade argued that disassembly of object code in order to gain an understanding of the ideas and functional concepts embodied in the code is a fair use.

The court concludes that where disassembly is the only way to gain access to the ideas and functional elements embodied in a copyrighted computer program and where there is a legitimate reason for seeking such access, disassembly is a fair use of the copyrighted work, as a matter of law.


CLASS DISCUSSIONCLASS DISCUSSION Should courts treat

intermediate copying differently from copying for compatibility in a final product?

Is standardization a valid rationale for copying?

Regarding the fair use factors, hasn’t Sega been injured because it can no longer control who produces games for its machine?


Sony v. ConnectixSony v. ConnectixNinth Circuit (2000)Ninth Circuit (2000)

Connectix had repeatedly copied Sony Playstation’s operating system during reverse engineering.

Because the operating system contained unprotected functional code and there was no way to reverse engineer without copying, the court afforded a “low measure of protection.”

The court held that intermediate copies of copyrighted software created during reverse engineering was a fair use.

Although intermediate copying constitutes infringement under Sega, such copying was permitted here to gain access to the functional elements of the code.


SOFTWARESOFTWAREFAIR USE & DERIVATIVE WORKSFAIR USE & DERIVATIVE WORKS

Ninth Circuit:– Lewis Galoob Toys,

Inc. v. Nintendo of America Inc. (1992)

– Micro Star v. Formgen Inc. (1998)

Software Copyright Victor H. Bouganim WCL, American University.

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Transcript of Software Copyright Victor H. Bouganim WCL, American University.