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New Developments in Copyright Protection of Computer Software

Published online by Cambridge University Press:  28 February 2019

Linda B. Samuels  and
Jeffrey M. Samuels
Linda B. Samuels
Affiliation:
Business Legal Studies, George Mason University, Fairfax, Virginia, U.S.A.
Jeffrey M. Samuels
Affiliation:
The Bureau of National Affairs, Inc., U.S.A.
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Extract

The scope of copyright protection for computer programs has proven to be a vexing issue for the courts. Over the past year, several courts focused on the issue and reached different results. This article will give background and then review and comment upon the newest decisions.

Type
Articles
Information
International Journal of Legal Information , Volume 15 , Issue 5-6 , December 1987 , pp. 195 - 200
Copyright
Copyright © 1987 by International Association of Law Libraries 

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References

1. See, for example, Apple Computer, Inc. v. Franklin Computer Corp., 714 F. 2d 1240 (CA3 1983); Hubro Data Products Corp. v Management Assistance, Inc., 219 USPQ (BNA) 450 (D Idaho 1983); Tandy Corp. v. Personal Micro Computers, 524 F. Supp. 171 (ND Calif. 1981).Google Scholar

2. Act of October 19, 1976, Pub. L. No. 94-553, 90 Stat. 2541.Google Scholar

3. As originally enacted, §117 read as follows: “Notwithstanding the provisions of sections 106 through 116 and 118, this title does not afford to the owner of copyright in a work any greater or lesser rights with respect to the use of the work in conjunction with automatic systems capable of storing, processing, retrieving, or transferring information, or in conjunction with any similar device, machine, or process, than those afforded to works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.”Google Scholar

4. Final Report of the National Commission on New Technological Uses of Copyrighted Works (CONTU) (1978).Google Scholar

5. Act of December 12, 1980, Pub. L. No. 96-517, sec. 10(b), 94 Stat. 3028.Google Scholar

6. 17 U.S.C. §101 (1980): “A ‘computer program’ is a set of statements or instructions to be used directly or indirectly in a computer program in order to bring about a certain result.”Google Scholar

7. 17 U.S.C. §117 (1980): “Notwithstanding the provisions of §106, it is not an infringement for the owner of a ropy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:Google Scholar

“(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

“(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be lawful.

Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.”Google Scholar

8. See generally cases cited note 1 supra.Google Scholar

9. Even author John Hersey, who dissented from the recommendation of CONTU that computer programs in machine-readable form were copyrightable, agreed that the source code form of application programs was a protectable form of literary work.Google Scholar

10. See, for example, GCA Corp. v. Chance, 217 U.S.P.Q. (BNA) 728 (ND Calif. 1982).Google Scholar

11. Utilitarian or useful articles are not subject to copyright protection. A “useful article” is defined in §101 of the Copyright Act as follows:Google Scholar

“an article having intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article.”

12. See, for example, Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (CA3 1983); Williams Electronics, Inc. v Artie International, Inc., 685 F.2d 870 (CA3 1982); Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521 (CA9 1984).Google Scholar

13. 217 U.S.P.Q. (BNA) (718) (ND Calif. 1982).Google Scholar

14. Id. at 720.Google Scholar

15. See Computer, Apple, Inc. v. Franklin Computer Corp., p. 1248.Google Scholar

16. Pub. L. No. 94-553.Google Scholar

17. See 17 U.S.C. §101 (1980).Google Scholar

18. 797 F.2d 1222 (CA3 1986).Google Scholar

19. Id. at 1233-34.Google Scholar

20. Id. at 1234.Google Scholar

21. 17 U.S.C. §102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”Google Scholar

22. 797 F.2d 1222, at 1236.Google Scholar

23. Id. at 1238.Google Scholar

24. Id. at 1231.Google Scholar

25. Id.Google Scholar

26. 807 F.2d 1256 (CA5 1986).Google Scholar

27. Id. at 1262.Google Scholar

28. Id.Google Scholar

29. Id.Google Scholar

30. Supra note 27.Google Scholar

31. The Plains Cotton court found that the similarities in the parties' programs was dictated by market factors.Google Scholar

32. 231 U.S.P.Q. (BNA) 700 (ND Calif. 1986).Google Scholar

33. 797 F.2d 1222 (CA3 1986).Google Scholar

34. Broderbund, p. 703.Google Scholar

35. 17 U.S.C. §102(b)Google Scholar

36. 2 U.S.P.Q.2d (BNA) 1385 (ND Ga. 1987).Google Scholar

37. Id. at 1388.Google Scholar

38. Id.Google Scholar

39. Id.Google Scholar

40. Id. at 1389.Google Scholar

41. 783 F.2d 421 (CA4 1986).Google Scholar

42. Softklone, at 1388.Google Scholar

43. Id. at 1389-1396.Google Scholar

44. 33 Pat. Tm. Copy J. (BNA) 613 (April 19, 1987).Google Scholar

45. Id.Google Scholar

46. See, for example, Cadam Inc. v. Adage Inc. No. C-86-20026 RPA (ND Calif.); NEC Corp v. Intel Corp., No. C-84-20700-WAI (ND Calif.).Google Scholar

47. The U.S. Copyright Office held a public hearing on this issue on September 9. 52 Fed. Reg. 28311 (July 29, 1987).Google Scholar