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Copyright, is one of nine Muses that inspires authors in modern society during the creative process. Copyright is a category of intellectual property, and the main idea behind intellectual property is to encourage creation, by ensuring authors with recognition of original works as their own. Copyright protects original works of authorship fixed in any tangible medium of expression by giving authors exclusive right to copy, distribute, and to create derivative works. Copyright and art usually go hand to hand, almost anything that we can be copyrighted can be fit into an art category. For example, songs and novel figure into the art of writing, dances can be classified under performing arts, and paintings and sculptures are art works. So, how does software fit into copyright? Or does it fit at all?
Software are computer programs, and society does not think of computer programs as art, or creative. So what does the law say about copyright and software? In addition to copyright rights specified, by statutes and constitution, common-law is also a source of copyright protection. Common-law is the body of law derived from judicial decisions and opinions1. So what does common-law copyright say about software? In order to answer these questions we are going to divide software into smaller elements and discuss how each of them is protected by copyright. For the purpose of this analysis, software will be divided into software, code and algorithms. Software refers to the product itself, code refers to the computer instructions, or program the software was created from, and algorithms refer to the algorithms used in the program. The process will address issues such as where copyright comes from, what the law is, some of the most important cases dealing with these laws, as well as the issues surrounding them and the courts' decisions. Finally from this analysis, we will be able to derive to what extent does copyright actually protects software.
The states where the first to provide copyright laws, until in 1790 the first Copyright Act became law. "An author may gain sole right and liberty of printing, reprinting, publishing and vending a map, chart, book, or books for fourteen years, ..." Wheaton V. Peters, involving two reporters of the Supreme Court, was the first landmark decision in 18342.
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The copyright law from statutes, and constitutions, as we can see in the previous paragraph, does not really give us specific details on how copyright protects software. The law instead defines copyright in very general terms, and it is up to the court to decide how do they applied to software. Common-law is the real source of specific software protection under copyright, so we will look at cases and the issues they discuss, to find out how copyright is applies to the three parts of software described above.
The first part we will analyze is the software, the product itself. Copyright protects the expression of an idea, not the idea itself; so while the structure of a data base is copyright protected, the idea of the database is not. However, this does not always works this way. For example, we would think that Microsoft could not copyright the idea of a graphical interface, but it could copyright the way it presented it graphical interface in Windows 98, since this will qualify as an expression of the idea of a graphical interface. This idea is completely shut down in Apple Computer V. Microsoft Corporation4, where a court decided that Apple Computer could not copyright the graphical user interface (GUI) it had developed for its Macintosh computer. The court stated that Microsoft and other software developers were free to copy the "functional" elements of Apple's GUI because there are only a limited number of ways that the basic GUI can be expressed differently. In another case, Lotus Development Corp. v. Borland International5, Lotus claimed that Borland copied the hierarchical menu system of the Lotus 1-2-3 spreadsheet program, into one of its spreadsheet programs. The court decided that Borland had not infringe Lotus copyright because the menu command hierarchy was a "method of operation," which is not protected under federal copyright law. However when we think about it, this could qualify as expression of an idea, the idea being a menu.
"Software are not expressive"seems to be the idea the previous two cases set forth. It seems some courts have a very had time relating software to expression, while others do not have a problem at all. Berstein V. United States Department of State6 and Junger V. Daley7, are two the two sides of a coin, that represents the idea of software as expression, specifically encryption software. In Junger the court determined software to be inherently expressive, meaning the software contains an exposition of ideas. According to the court encryption code is inherently functional; it is design to enable a computer to do a designated task. On the other side of the coin, in Berstein the court decided exactly the opposite. The inherent functionality of software does not vitiate its status as protected speech: instructions, do-it yourself manuals, and recipes, are often purely functional, but they are also protected as speech because they are written in a language8.
The Bertein case relies on the idea that anything written in a language is expression. If this where true, then code, the set of statements, would be copyright protected. We can think of coding as a language between the computer and the user, where the statements are a composition of words. Copyright generally does not protect words by themselves, but it does protect the combination of the words in a song or novel. The same idea can be applied to coding. A statement by itself is nothing, it is the combination of instructions that make the program mean something. So why would songs be different from programs? Code is the part that most companies want to keep secret. When a Software is release in the market, an executable is distributed. The source code is usually kept secret by the company. Most companies use trade secrets to then protect this part of the software.
The third part of software to discuss is the algorithms. Algorithms are precise rules for transforming specified inputs into specified outputs in a finite number of steps9. Algorithms undergo a process similar to code. Most courts now do not consider algorithms to be expressive, specially mathematical algorithms. Courts are a little more open to view algorithms as process, and therefor protected by patents instead of copyright.
While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be10. Some courts however, have their own definition of what an algorithm is. Algorithms are defined procedure for solving a given type of mathematical problem by some courts, and according to this definition a court found that an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent11.
The written law set forth all the basic principals of copyright, and leaves too common-law the job to interpret and apply these laws to software. From the three parts a software was divided in for the purpose of our analysis, the software, the product itself is the one when copyright protection is the strongest. Even with cases dealing with this aspect courts are not very willing to rule in favor of protection under copyright as we saw in Apple Computer V. Microsoft Corporation and Lotus Development Corp. V. Borland International. There is no doubt that if someone where to copy the entire design of a software, any court will find infringement of copyright, but if only pieces of the design are used, like in the two cases mentioned before courts are willing to let it slide. The main issued here is that software is not consider as a form of expression most of the time, although we saw differently in Berstein I, most courts often decide that software and expression do not go along, just like the court did on Junger v. Daley. In spite of all this, courts do protect software to some extent under the copyright law. However, the code and algorithms used to create the software are another story. Most of the time source code is kept secret by the companies, so their protection comes under trade secret. For algorithms, court almost never find protection under copyright. Courts consider algorithms as processes, as we saw in Mackay Radio & Telegraph Co. V. Radio Corp. of America and Gottschalk v. Benson, so protection for algorithms will come under patents, if they are not mathematical. The greatest protection offer by copyright is for the software as a unit, the product itself. Software as whole entities have the maximum protection under the copyright law, and beyond the general protection, Title 17 has specific section to deal with the coping of software12.
1 "common-law," Black's Law Dictionary: Common-Law, 1996.
2 Lawrence M. Friedman, A History of American Law, 2nd ed.(New York: Simon & Schuster, 1985)256.
3 US Code : Title 17, Section 109 & 117
4 Apple Computer v. Microsoft Corporation, 35 F.3d 1435 (9th Cir. 1994).
5 Lotus Development Corp. v. Borland International, 49 F.3d 807 (1st Cir. 1995).
6 Berstein v. United States Department of State, 974 F. Supp. 1288 (N.D. Cal. 1997).
7 Junger v. Daley, 8 F. Supp. 2d 708 (N.D. Ohio 1998) .
8 Berstein I, 922 F. Supp. At 1435.
9 Donald E. Knuth. The art f programming, 2nd ed. (Massachusetts: Addison-Wesley, 1981) 669.
10 Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U.S. 86, 94 (1939).
11 Gottschalk v. Benson, supra, at 67; Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948)
12 US Code : Title 17, Section 109 & 117