Copyright and Patent Issues
As computer technology has come to play a significant role in an increasingly global economy, companies in the United States and around the world have shown strong interest in protecting their own developments in computer technology. They have also shown strong interest in building upon or imitating the developments of other companies. Until recently, intellectual property law did not address this new area of technology, and so the legislative and judicial bodies of the world have changed and clarified intellectual property law to define the playing rules for companies in the computer technology industry.
While patents do provide an important form of protection for computer technology (e.g., semiconductor chips are patented and software may be patented when it meets the rigid criteria for patents), most of the debate and activity concerning intellectual property law and computer technology has focused on copyright law and has occurred in the U.S. Up until the late 1990s the main issue was software copyright. When the parameters of software copyright law were better defined, focus shifted to protecting copyrighted works on the Internet and other electronic networks.
Protecting Software with Copyrights
The first copyright for a computer program was issued in 1964. Despite that issuance, intellectual property law did not address computer-related intellectual property at that time. It was still generally debated whether computer programs were protectable intellectual property at all, and, if so, whether copyright or patent was the more appropriate form of protection.
When Congress enacted the Copyright Law of 1976 these questions were cleared up somewhat. While the law itself did not directly refer to computer programs, House and Senate Reports accompanying the law mentioned computer programs as copyrightable "literary works."
In 1979 the National Commission on New Technological Uses (CONTU), a group chartered by Congress to examine the impact of photocopiers and computers on copyright law, issued a report recommending that Congress amend the Copyright Law to state more clearly that computer programs are copyrightable. Congress soon made that amendment, enacting the Computer Software Protection Act of 1980. With the confirmation of computer programs as copyrightable, the debate shifted to the extent of the protection companies had for their copyrighted software. The courts ruled on the extent and types of protection for copyrighted software in a series of cases that occurred in the 1980s and 1990s.
Initial rulings in the early 1980s favored broad copyright protection for computer programs. This broad protection limited the ability of companies to produce programs that directly competed with existing programs. These initial rulings were quickly corrected, however, by decisions ruling that similarity between competing programs was not necessarily infringement. The courts allowed similarity between programs as long as there was no copying of code and as long as the similarity was dictated by the function or market the computer programs addressed. However, when courts found similarity between non-literal elements (structure, sequence, and organization) of programs to be unnecessary, they ruled that copyrights had been infringed. These later rulings promoted interoperability, the creation of products that would interact with, add to, modify, or compete with existing programs--without plagiarizing them.
Court decisions in the late 1980s and early 1990s established the following legal principles:
- Literal elements (source code and object code) are protected, while non-literal elements (structure, sequence, and organization) are not.
- User interfaces are protected unless they have become such powerful industry standards that protection by copyright would create a monopoly for the company holding the copyright.
- Reverse engineering to discover how a computer program works or what ideas it is based on does not constitute infringement.
The following court cases set important judicial precedents in software copyright law and brought clarification to the Copyright Law of 1976 and the Software Protection Act of 1980:
- Apple v. Franklin, 1983, established that computer program code was copyrightable in any media or form.
- Whelan v. Jaslow, 1987, indicated that copyrights protected the organization and structure of computer programs. This ruling later came to be viewed as flawed and was soon rejected by other courts.
- Plains Cotton v. Goodpasture, 1987, established that similarities in non-literal elements of computer programs, such as organizational structure, do not indicate copyright infringement when the market requires those elements.
- Lotus v. Paperback, 1990, and Lotus v. Borland, 1992, established that user interfaces are copyrightable when there are other possible user interfaces that would represent the ideas of the computer program equally well.
- Feist v. Rural Telephone, 1991, established that no matter how hard a company works to compile the facts in a database, facts are not copyrightable.
- Apple v. Microsoft, 1992, established that user interfaces that have become industry standards are not protected by copyright; otherwise, competition would be stifled.
- Computer Associates v. Altai, 1992, established that similarities in non-literal elements of computer programs do not indicate copyright infringement when the operating system requires that element.
- Atari v. Nintendo, 1992, and Sega v. Accolade, 1992, indicated that reverse engineering to obtain information that would allow a computer program to work with an existing program does not infringe copyrights, even when the copying of code from the existing program would be required to achieve interoperability.
Protecting Copyrights on the Internet and Other Electronic Networks
In the 1990s President Clinton and Vice-President Gore focused attention on building a National Information Infrastructure (NII). They established the NII Task Force to head up the NII effort and to investigate issues surrounding the building of the NII.
In a networked world, copyrights are easier to violate and harder to enforce. Copyright enforcement on the Internet and other electronic networks was therefore one of the critical issues the NII Task Force addressed. The Task Force's final report was published in September 1995. It made recommendations that, if followed, would essentially redefine key ideas of copyright law in ways that expand the rights of copyright owners and limit the rights of users of copyrighted works.
In 1998 Congress took the recommendations of the NII Task Force and enacted the Digital Millennium Copyright Act (DMCA). Users of copyrighted works, including the scientific, library, and academic communities, opposed the DMCA, just as they had opposed the NII Task Force report.
The DMCA implements the World Intellectual Property Organization (WIPO) Treaty and addresses several other intellectual property issues. The WIPO treaty essentially assures that WIPO signatory nations will protect copyrights for the citizens and corporations of other member countries.
In general the DMCA sets the following legal standards for copyright in a networked world. The DMCA:
- criminalizes the circumvention of anti-piracy technology that protects copyrighted works, except in a few special cases, which include education (in certain circumstances), research, interoperability, and security testing;
- limits the liability of Internet service providers (ISPs), including libraries acting as ISPs, for copyright infringements occurring on their networks;
- demands that "webcasters" pay copyright licensing fees to record companies;
- requires the Register of Copyrights to submit recommendations to Congress on how to foster "distance" (broadcast or web-based) education while protecting copyrights.
With the DMCA in place, it is now up to the courts to interpret how copyright law will be played out on the Internet and other electronic networks. A few early cases interpreting the DMCA include the following:
- In Tasini v. New York Times, 1999, the court ruled that companies purchasing rights to the "first" publication of works by freelance authors do not have the right to then sell the works to database services.
- In Recording Industry Association of America v. Diamond Multimedia, 1999, the court ruled that the Rio, an MP3 player, does not violate the Audio Home Recording Act of 1992 because it merely plays and does not directly record digital audio files.
- In UMG Recordings v. MP3.com, 2000, the court ruled that MP3.com infringed music copyrights when it provided copies of music CDs on the Internet for downloading, even though it required users to prove they owned copies of the CDs they downloaded.
- In A&M Records v. Napster, 2001, the court ruled that the Napster website, which enables users to download music MP3 files, did infringe the copyrights of songs downloaded by users. The court required the record companies to identify recordings for which they had copyrights, and it required Napster to pull those recordings from its website.
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