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Tuesday, November 1, 2016

1:55 PM

Copyright protection for software

Pre 1976 copyright act
No express coverage for computer software, which of course did not exits
in 1909
1976 Copyright Act
Software is considered a literary work - although not specifically written in
the act, the copyright office published a new compendium which makes it
clear what literary works are (computer programs, databases). They also
define computer program "a set of statements or instructions to be used
directly or indirectly"
Also, 1994 TRIPs agreement says that "computer programs shall be
protected as literary works under the Berne Convention." Subject to
limitations in Article 9(2) of TRIPs that "ideas, procedures, methods of
operation or mathematical concepts" are not protectable.
Key statutory Provisions
Fixation: this requirement is that "has to be fixed in some tangible
medium of expression with the aid of a machine or device." Software fills
this requirement because software is fixed is some type of medium.
Idea/Expression dichotomy: protection does not extend "to ideas,
procedures, process, system, method of operation, concept, principle, or
discovery"
Sec 117 Limitations on exclusive right
117 (a) Making of additional copy or adaptation by owner of a copy: it is
not an infringement for the owner of a copy of a computer program to
make or authorize the making of another copy or adaptation of that
computer program (Example: I can buy Microsoft Office and make a copy
in my computer or authorize someone else to install it in their computer)
provided that:
1. That such new copy or adaptation is created
2. That I use it as a backup
Sec 117(a) Owner v. Licensee
Krause v. Titleserv, Inc (2005)
The cout made it clear that the owner of a phisical copy is distinct
from copyright ownership. The 2nd cir made it clear that

1. That such new copy or adaptation is created

2. That I use it as a backup
Sec 117(a) Owner v. Licensee
Krause v. Titleserv, Inc (2005)
The cout made it clear that the owner of a phisical copy is distinct
from copyright ownership. The 2nd cir made it clear that
Test should be whether the party exercises sufficient incidents of
ownership over a copy of the program to be sensibly considered the
owner of the copy for purposes of 117(a)
Vernor v. Autodek, Inc. (2010)
A software user is a licensee rather than owner of the copy where
copyright owner:
1. Specifies that the user is granted a license
2. Significantly restricts the user's agreement to transfer the
software
3. Imposes notable use restrictions
Vernor held that when an individual receives a copy of a
copyrighted work pursuant to a written agreement, ownership is
determined by considering both formal and informal factors, such
as whether the greement was formally labeled a license; whether
the copyright owner retained title to the copy; whether the
copyright owner required the copy's return or destruction; whether
the copyright owner forbade duplication of the copy"
Sec 117( c) Machine Maintenance or Repair
It is not an infringement for the owner or lessee of a machine to make or
authorize the making of a copy of a computer program if the copy is made
solely by the activation of a machine that lawfully contains an authorized
copy of the computer program for purposes of maintenance or repay if:
1. Such new copy is used in no other manner as is destroyed
immediately after the maintenance or repair is completed; and
2. With respect to any computer program to be activated, such
program or part thereof is not accessed or used other than to make
such a new copy by virtue of the activation of the machine.
Storage Tech. Corp. v. Custom Hardware & Eng
Sec 109(a) First Sale Doctrine
Limitations on exclusive rights: Effect of transfer of particular copy or
phonorecord
The owner of a particular copy or phonorecord lawfully made under this
title, or any person authorized by such owner, is entitled, without the
authority of the copyright owner, to sell or otherwise dispose of the
possession of that copy or phonorecord
Adobe
In 1990 - Computer Software Rental Amendments
Made it unlawful to rent, lease, or lend a computer program for direct or

title, or any person authorized by such owner, is entitled, without the

authority of the copyright owner, to sell or otherwise dispose of the
possession of that copy or phonorecord
Adobe
In 1990 - Computer Software Rental Amendments
Made it unlawful to rent, lease, or lend a computer program for direct or
indirect commercial grain.
Excludes educational institution to another nonprofit educational
institution or to faculty, staff, and students.
Why is Software "Literary Property"?
Code can be printed and "read" by a human and/or machine
It is fixed in a tangible medium like a hard drive, flash drive, or computer
code paper printout
It can be original authorship; or
It may be combine original authorship with a protectable public domain
Two primary types of code:
"Source Code"= what programmers write (words, symbols, numbers) for
different computed program languages such as BASIC, C++, Java.
"Object Code" = what computers read (binary's 0's and 1's)
Source codes must be "compiled" (translated) into binary
Feist Publications, Inc. v. Rural Telephone Service Co.,
Compilation of non-protectable elements can be entitled to copyright
protection even though constituent elements are not, where the
structure and organization of the compilation is sufficiently original.
Original arrangement of uncopyrightable works can be copyrightable as a
compilation
Facts, domain content, idea-merger and scenes a faure material must be
filtered out
Requisite level of originality for copyright is low
Eliminated the "sweat of the brow" doctrine.
Computer database
Assessment Technologies of Wi, LLC v. Wiredata, Inc.
The court held that database structure was protectable: minimum
originality was satisfied by Market Drive bc no other real estate
assessment program arranged the data the way theirs did, and this
structure is not so obvious or inevitable as to lack the minimal
originality requirement.
What is in the public domain cannot be appropriated by claiming
copyright
If there is only one way in which to express an idea (alphabetical
order) then form and idea merge, and in that case since an idea
cannot be copyrighted the copying of the form is not an
infringement
Extracting unprotected data is not infringement if protected code

If there is only one way in which to express an idea (alphabetical

order) then form and idea merge, and in that case since an idea
cannot be copyrighted the copying of the form is not an
infringement
Extracting unprotected data is not infringement if protected code
isn't copied. But the date may be so intermingled that some code
must be copied to extract it. "Intermediate copying" of the database
file solely to "extract non-copyrighted material" would then be a
fair use per Sega Enterprises Ltd. V. Accolade Inc.
Software Creation Components
Program concept and goals set
"Modules" or "subroutines" are discrete portions of a program that
perform "subtasks." commands input by users execute modules.
Flow charts developed for program organization and structure, data flows
(input/output), module interaction, data processing order etc.= Structuresequence-organization or SSO
Code written: source --> compiled to object code.
Computer Screen Displays
Computer screed displays "represent products of computer programs
rather than the programs themselves, and fall under the copyright rubric
of audiovisual works." Computer Assoc. v. Altai
The Copyright Office has consistently believed that a single registration is
sufficient to protect the copyright in a computer program and related
screed displays, including video games, without a separate registration for
the screen displays or a specific reference to them on the application for
the computer program.
Website Coding and Displays
Visible "look & feel" and the layout (spatial placements; where ads are,
etc.) of web sites screen displays are generally not protectable. Copyright
Office will not register "the standard arrangement or placement of the
common elements and features on a webpage in the absence of specific
copyrightable content in those elements, because these types of choices
do not constitute original authorship.
HTML Cases:
Williams Electronic v. Artic Intern
3rd Cir rejected claims that use of a computer program in game
ROM (read only memory) was utilitarian too transient and was not
protectable because the coding was in object code and not
intelligible to humans.
Apple Computer, Inc. v. Franklin Computer Corp
Franklin copied Apple's operating system programs in an effort to
achieve compatibility
Ct found that both the Apple source code and object code were

protectable because the coding was in object code and not

intelligible to humans.
Apple Computer, Inc. v. Franklin Computer Corp
Franklin copied Apple's operating system programs in an effort to
achieve compatibility
Ct found that both the Apple source code and object code were
protected by copyright
Cited to Williams case
Whelan Associates, Inc. v. Jaslow Dental Laboratory
Dental lab software written in EDL programming language was
rewritten by the defendant line by line in BASIC language to
compete with plaintiff's application but copied the structure
Structure of the subject program was deemed copyrightable
because there were many other wats to perform the same function
using different structures and designs
Analogy to "compilation."
Held: where there is Non-literal copying of a program's file
structure, under the idea/expression dichotomy focuses on the end
sought to be achieved by the work in question. The purpose or
function of a utilitarian work would be the work's idea, and
everything that is not necessary to that purpose or function would
be part of
This test has been widely criticized.
Computer Associates v. Altai (1992)
Addressed "whether and to what extent non-literal aspects code a
computer program (not reduced to written code) are protected by
copyright.
CA had designed a computer program. Altai copied the program
30%. CA sued for literal copying. Altai re-wrote the program. CA
then said it did not matter bc it was copying the structure.
Court adopted the "abstraction-filtration-comparison test to
determine whether the
Abstraction (6 levels of abstractions from less to more deep
levels of protections)
What is the main purpose of the program
Program structure or architecture
Modules
Algorithms and data structures
Source code
Object code
Filtration (Filter each level of abstraction to various copyright
doctrines:
Scenes a faire doctrine [scene that must be done: that
which is obligatory or customary to a genre] denies

Source code
Object code
Filtration (Filter each level of abstraction to various copyright
doctrines:
Scenes a faire doctrine [scene that must be done: that
which is obligatory or customary to a genre] denies
protection to program elements dictated solely by
external factors such as the mechanical specifications of
the computer on which a particular program is intended
to run
Merger doctrine
Public domain elements
Basin unprotected functions common to computing
Comparison
The resulting protectable expressions compared with
the allegedly infringing program.
Substantia similarity focuses on
Brown Bag Software v. Symantec Corp (1992)
Established extrinsic/intrinsic test for determining similarity
between computer programs for purposes of assessing
infringement, but not copyrightability.
With respect to non-literal program features, concepts fundamental
to computer programs generally are not copyrightable
Functions listed in a menu bar constitutes the idea of the program
while the expression of the ideas inherent in the program's features
is distinct
Lastly, pull-down windows are not protectable if they are standard
commonplace in the software industry.
Sega Enterprises v. Accolade, Inc (1992)
Intermediate copying of the object code was permissible for the
purpose of discovering Genesis system's functional requirements
for compatibility, which was not copyrightable under Sec 102 (b).
MAI case was overturned by Sec 117(a)
Atari Games Corp. v. Nintendo of Am., Inc
Reverse engineering permissible to learn unprotected ideas and
processes but here what was extracted was substantially original
and protectable and not a merely idea/expression
Apple Computer, Inc., v. Microsoft Corp
Lotus Development Corp. v. Borland Int'l Inc.,
The court held that lotus menu command hierarchy is an
uncopyrightable 'method of operation'
Lexmark International, Inc., v. Static Control Components
Court said this code was not copyrightable because this was the
most efficient means to measuring the ink and may lack sufficient

 Lotus Development Corp. v. Borland Int'l Inc.,

The court held that lotus menu command hierarchy is an
uncopyrightable 'method of operation'
Lexmark International, Inc., v. Static Control Components
Court said this code was not copyrightable because this was the
most efficient means to measuring the ink and may lack sufficient
originality.
To discern whether originality exist
Jamison Bus. Sys., Inc. v. Unique Software Support Corp
Oracle America, Inc. v. Google, Inc. (2015)
Copyrightability and protection for JAVA program APIs= application
software interfaces
API= allows different software programs to communicate with each
other, including a program's input and output, like a traffic control
system.
Google copied the structure, sequence, organization of 7k+ lines of
declaring code of 37 API packages for its Android system, but not
the implementation code (which is triggered upon a command frm
a header).
Rejected Lotus
Super long case - end result - found in favor of Google for fair use