Basic principles of copyright protection for computer software
Yoches, E. Robert; Levine, Arthur J.

BASIC PRINCIPLES OF COPYRIGHT PROTECTION FOR COMPUTER SOFTWARE Copyright is a form of protection provided by the laws of the United States to the authors of "original works of authorship" including literary, dramatic, musical, artistic and certain other intellectual works.

Under the copyright law, a computer program is entitled to copyright protection as a "literary" work.

A computer program is defined in the copyright law as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result."

Unlike many other forms of intellectual property protection, copyright protection begins at the time a work is created in fixed form; no act other than creation of the work is required to obtain a copyright for the work. When a work of authorship is created, the copyright in that work immediately becomes the property of the author, although the author may not necessarily be the person who wrote the program.

For example, if a work is created by an employee in the course of employment, the employer and not the employee is considered the author of the work.

Copyright protection, which is available for both published and unpublished works, gives the copyright owner the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies, and certain other rights of performance and display.

These exclusive rights, however, all relate to copying.

If another party independently develops a work, there is no infringement even if there is great similarity.

Most of the issues which have been discussed and litigated in the area of copyrights and computer software have not involved the scope of rights but rather the core question of whether a particular program was even copyrightable.

Among the major issues considered by the courts in the early copyright/computer cases were (1) whether object code was entitled to copyright protection, even though it does not communicate with humans; (2) whether object code embodied in read only memories (ROMs) and other memory devices were subject to protection, even though such code directly interacts with circuitry; and (3) whether operating system programs were entitled to copyright protection, even though operating systems controlled the operation of a machine.

For the most part, the courts have answered all of those questions in the affirmative.

The courts have decided that object code is a work of authorship just as source code is.

The courts have also found it irrelevant for copyright purposes that object code be stored in ROMs because the form of fixation is not what is copyrighted.

Instead, copyright protection extends to the creative talents involved in authoring a program.

In addition, courts decided that even though operating system programs may only communicate with a machine, such programs will result from human authorship and therefore are copyrightable.

What is protectable in a computer program is not an easy question to answer. One of the most central tenets of copyright law is that protection is available for expression, such as the literary or textual expression contained in the computer program, but not for ideas, such as program logic, algorithms, systems, methods, concepts or layouts.

The difficult question of what constitutes idea and what constitutes expression in a computer program was considered in the case of Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3rd Cir. 1986), cert. denied, 479 U.S. 1031 (1987).

In Whelan, the court was faced with deciding whether the defendant, who had written an applications program for the IBM PC computer in BASIC, infringed a similar program designed for the IBM/Series I computer and written in Event Driven Language (EDL). Clearly, the computer code in the two programs was dissimilar.

Nevertheless, the court held that the scope of copyright protection for a computer program's expression may extend beyond its literal code to the structure, sequence and organization of the program.

In Whelan, the noncopyrightable "idea" of the program was considered to be the efficient management of a dental laboratory, a purpose the court deemed could be accomplished in numerous ways using various program structures.

On this basis the court determined that the structure, sequence and organization of the program constituted the expression of the program and not the idea. Because the court found similarities between the defendant's and the copyrighted program's file structures, screen outputs, and structures of five subroutines, the defendant was found liable for copyright infringement.

Other courts and commentators have criticized the decision in Whelan as overly broad and expansive.

Although most commentators agree that copyright protection extends beyond only the precise programming code, few are willing to extend it as broadly as the court in Whelan suggests.

Even if this decision is followed by other courts, it is likely that the structure, sequence and organization of some programs may be found to be too trivial, non-original or utilitarian to deserve such protection.

Another related issue was recently decided in a very interesting and important decision in early February, 1989.

In that case, NEC Corporation v. Intel Corporation, No. C-94-20799-WPG (N.D.
CA 1989), a court in California was faced with the threshold issue of whether microcode was copyrightable. The court held that it was, despite arguments that microcode was too inter-twined with machine architecture to be considered expression.

The court also held that Intel had copyright protection for the microcode in its 8086 and 8088 microprocessors.

Despite its holding regarding the copyrightability of microcode, however, the court found that NEC did not infringe the copyright in Intel's microcode. There were a number of reasons for the court's conclusion, but of particular interest is the court's finding that the similarities which did exist between NEC's and Intel's microcode resulted from the constraints required by the hardware architecture and specifications of the microprocessor, and were thus not protectable by copyrights.

In following the reasoning of several earlier decisions, the court found that where certain computer code can only be written within a limited range of expression, similarities between the original program and a subsequent program must necessarily occur.

To protect the first expression would necessarily protect the underlying idea, and copyright cannot and does not protect ideas.

One other current issue which demands discussion relates to the copyright protection that is available for computer-generated screen displays.

Courts have recently been faced with the question of whether the "look and feel" of computer screen displays are protectable.

Digital Communication was successful in protecting its main menu screen display in a suit which it brought against Softklone Distributing Corporation in 1937.

Digital Communications Association, Inc. v. Softklone Distributing Corp., 2 U.S.P.Q. 2d 1385 (N.D. Ga. 1987).

Despite certain differences in screen displays, the court determined that Softklone's status screen copied the "look and feel" of Digital Communication's copyrighted screen.

Interestingly, the screens were the result of entirely different computer programs.

(See "Why the Look and Feel of Software User Interfaces Should Not be Protected by Copyright Law," page 563.)

In 1987, several lawsuits were filed based on screen displays.

In two of the lawsuits, Lotus Development Corp. v. Mosaic Software, Inc., and Lotus Development Corp. v. Paperback Software International, Lotus filed claims for infringement of copyrights in the Lotus 1-2-3 screens.

Ironically, later in 1987 the owners of copyrights in the Visicalc Programs sued Lotus (although unsuccessfully for other reasons) for copyright infringement.

Even more recently, Apple Computer, Inc. sued both Hewlett Packard Co. and Microsoft Corp. for copyright infringement.

Apple alleges that Microsoft's Windows 2.03 software and Hewlett-Packard's NewWave program infringe certain of its graphic interface copyrights.

That case has not yet been decided.

As may be apparent, the area of copyright protection for computer software is presently very dynamic as the courts and the industry come to grips with the new marriage between fast-changing technology and traditional protection. Both copyright law practioners and computer programmers still have a great deal to learn from each other.

Journal: Communications of the ACM May 1989 v32 n5 p544(2)
* Full Text COPYRIGHT Assn. for Computing Machinery, Inc. 1989.