1. Computer Protection for Computer Programs and Digital Media David Baumer Spring, 2005

2. CR Protection for Computer Programs In 1976 Congress agreed that computer programs could be protected by CR law In 1976 Congress agreed that computer programs could be protected by CR law Note that software has an expressive dimension and an operational side Note that software has an expressive dimension and an operational side CR protection extends only to expression not functionality CR protection extends only to expression not functionality Clearly CR protection includes code, but after that it is questionable as to what is included Clearly CR protection includes code, but after that it is questionable as to what is included The scope of protectible expression is the subject matter of this chapter The scope of protectible expression is the subject matter of this chapter The resolution of this issue decided some of the most important software cases since 1980. The resolution of this issue decided some of the most important software cases since 1980. Lotus cases, Apple v. Microsoft, Lotus cases, Apple v. Microsoft, Most of the relevant law has come from CL decisions of the courts Most of the relevant law has come from CL decisions of the courts

3. CR Protection for Computer Programs Distinguishing between expression and the idea is an inexact art Distinguishing between expression and the idea is an inexact art If only the words are protected in a novel, it is akin to protecting only the code If only the words are protected in a novel, it is akin to protecting only the code With that level of protection, only the names could be changed in a novel and the second work would not be an infringement With that level of protection, only the names could be changed in a novel and the second work would not be an infringement On the other hand, the plot, organization, and characters could be protected—similar to protection of the SSO of software On the other hand, the plot, organization, and characters could be protected—similar to protection of the SSO of software

4. CR Protection for Computer Programs The purpose of CR law is not to convey monopoly on the author The purpose of CR law is not to convey monopoly on the author Therefore the availability of substitutes is very important in CR/software law Therefore the availability of substitutes is very important in CR/software law It is a mistake to interpret CR law creating a monopoly It is a mistake to interpret CR law creating a monopoly Standard literary accounts, called scenes a faire are not protectible under CR law— e.g., a king’s coronation Standard literary accounts, called scenes a faire are not protectible under CR law— e.g., a king’s coronation These same principles were then applied to computer software with mixed results These same principles were then applied to computer software with mixed results

5. CR Protection for Computer Programs The courts groped with how to protect computer programs and initially were very protective The courts groped with how to protect computer programs and initially were very protective Whelan v. Jaslow Whelan v. Jaslow Origin of the look and feel test Origin of the look and feel test Essentially the same program was developed using two different source codes Essentially the same program was developed using two different source codes CR protection for the SSO of the program CR protection for the SSO of the program Look and feel test should only be applied only if virtually all of the program is considered protectible Look and feel test should only be applied only if virtually all of the program is considered protectible

6. CR Protection for Computer Programs 1994 Apple v. Microsoft 1994 Apple v. Microsoft Apple sued based on the similarities between Windows and its (MacIntosh’s) graphical interface Apple sued based on the similarities between Windows and its (MacIntosh’s) graphical interface After stripping out what was not protectible, there was virtually nothing left to compare, hence the look and feel test was not applied After stripping out what was not protectible, there was virtually nothing left to compare, hence the look and feel test was not applied Apple had licensed a part of Windows and the rest was either functional or was deemed part of the idea Apple had licensed a part of Windows and the rest was either functional or was deemed part of the idea If a program is too successful it becomes an industry standard and therefore not protectible If a program is too successful it becomes an industry standard and therefore not protectible Similar to the fate of generic TM’s Similar to the fate of generic TM’s If there is only one way to accomplish a task then it is not protectible under CR law If there is only one way to accomplish a task then it is not protectible under CR law

7. CR Protection for Computer Programs Note that CR law does protect code Note that CR law does protect code Source, object, micro, and code embedded on hardware such as Read-Only chips Source, object, micro, and code embedded on hardware such as Read-Only chips User interfaces User interfaces The Lotus v. Paperback case established protection for user interfaces, using Whelan as its authority The Lotus v. Paperback case established protection for user interfaces, using Whelan as its authority This case has not been followed, particularly after the courts allowed patents to protect various aspects of software including This case has not been followed, particularly after the courts allowed patents to protect various aspects of software including business application programs, operating systems, expert systems, user interfaces, and data processing systems business application programs, operating systems, expert systems, user interfaces, and data processing systems

8. CR Protection for Computer Programs Modern analysis relies on abstraction, filtration, and comparison Modern analysis relies on abstraction, filtration, and comparison Abstract the code, structure, organization, function and purpose Abstract the code, structure, organization, function and purpose Filter out items based on efficiency, functionality and items in the public domain Filter out items based on efficiency, functionality and items in the public domain These are all part of the idea and thus not protectible These are all part of the idea and thus not protectible Note that standard programming tools are in the public domain, e.g., shopping cart for e-commerce sites Note that standard programming tools are in the public domain, e.g., shopping cart for e-commerce sites Then compare the def.’s program with the CR’ed program Then compare the def.’s program with the CR’ed program After all the filtering, there is often not much to compare After all the filtering, there is often not much to compare

9. CR Protection for Computer Programs Protection for user interfaces was further diminished by the Lotus v. Borland decision Protection for user interfaces was further diminished by the Lotus v. Borland decision The court indicated that the Lotus command hierarchy serves as the method of operation The court indicated that the Lotus command hierarchy serves as the method of operation It cannot be separated from the idea of the spreadsheet It cannot be separated from the idea of the spreadsheet It is similar to the command system of a VCR It is similar to the command system of a VCR

10. International CR Protection of Computer Programs Again the have and have not issue arises Again the have and have not issue arises In 1991 the EU In 1991 the EU Provides similar CR protection for software that is available in the U.S. Provides similar CR protection for software that is available in the U.S. Exclusive rights to reproduce, adapt, load etc. Exclusive rights to reproduce, adapt, load etc. Right to make an archival copy Right to make an archival copy Reverse engineering is allowed for purposes of discovering underlying ideas and interoperability Reverse engineering is allowed for purposes of discovering underlying ideas and interoperability Decompilation is a form of reverse engineering Decompilation is a form of reverse engineering

11. International CR Protection of Computer Programs CR protection of software is included in TRIPS CR protection of software is included in TRIPS WTO members are required to protect software as though it was a literary work WTO members are required to protect software as though it was a literary work How much more this is than just the code is cloudy at best How much more this is than just the code is cloudy at best Owners of software can prevent rentals of their work, which is consistent with the exception to the first sale rule in U.S. CR law Owners of software can prevent rentals of their work, which is consistent with the exception to the first sale rule in U.S. CR law Having laws on the books is one thing, enforcement is another Having laws on the books is one thing, enforcement is another In some countries, 90 percent of the software used has been is pirated In some countries, 90 percent of the software used has been is pirated

12. Reverse Engineering of Computer Programs For CR owners of software, they are aware that CR law only protects expressions of ideas For CR owners of software, they are aware that CR law only protects expressions of ideas Defining where the line is between ideas and expression is difficult Defining where the line is between ideas and expression is difficult The clean room - dirty room technique is a means of avoiding CR liability The clean room - dirty room technique is a means of avoiding CR liability In the dirty room the ideas embedded within the software are identified In the dirty room the ideas embedded within the software are identified The ideas are then transmitted to the clean room and programmers wrote code to accomplish those ideas The ideas are then transmitted to the clean room and programmers wrote code to accomplish those ideas CR liability is avoided because the clean room folks never had access to the CR’ed material CR liability is avoided because the clean room folks never had access to the CR’ed material Independent creation is a defense Independent creation is a defense

13. Reverse Engineering of Computer Programs The first IBM clones were made using the clean room technique The first IBM clones were made using the clean room technique Clean room – dirty room techniques still rely on the dirty room being able to differentiate between ideas and expression Clean room – dirty room techniques still rely on the dirty room being able to differentiate between ideas and expression Dirty room folks must not copy the software or even make notes and program listings Dirty room folks must not copy the software or even make notes and program listings Since most software is sold or circulated as object code, that code must be decompiled into source code Since most software is sold or circulated as object code, that code must be decompiled into source code Sega v. Accolade stands for the proposition that decompilation is not a copyright violation if it is for the purpose of interoperability Sega v. Accolade stands for the proposition that decompilation is not a copyright violation if it is for the purpose of interoperability It is a fair use It is a fair use

14. Reverse Engineering of Computer Programs Decompilation also allows for discovery of trade secrets Decompilation also allows for discovery of trade secrets Decompilation is allowed as long as there is no other way of gaining access to the ideas embedded in the software Decompilation is allowed as long as there is no other way of gaining access to the ideas embedded in the software The reason for gaining access must be legitimate The reason for gaining access must be legitimate Certainly interoperability is legitimate Certainly interoperability is legitimate Decompilation to gain interoperability trumps license agreements according to most legal authorities, particularly in the mass market Decompilation to gain interoperability trumps license agreements according to most legal authorities, particularly in the mass market EU agrees that decompilation for interoperability is a fair use EU agrees that decompilation for interoperability is a fair use

15. Reverse Engineering of Computer Programs The decision in Sega enabled Connectix to prevail over Sony in case where The decision in Sega enabled Connectix to prevail over Sony in case where Connectix decompiled Sony’s Virtual Play Station in order to make it operate on a Mac Connectix decompiled Sony’s Virtual Play Station in order to make it operate on a Mac Court agreed with the def. that the decompilation was a fair use Court agreed with the def. that the decompilation was a fair use

16. Digital Sampling, Imaging and Multimedia Works Digital audio sampling Digital audio sampling Pre-recorded sounds are manipulated to form new sounds Pre-recorded sounds are manipulated to form new sounds Slow downs, speed up, raise or lower pitch Slow downs, speed up, raise or lower pitch Basically involves integration of the work of another into your musical work Basically involves integration of the work of another into your musical work Mash ups—mixing lyrics from one CR’ed work with the melody of another CR’ed work Mash ups—mixing lyrics from one CR’ed work with the melody of another CR’ed work The samplers, broadly defined consider what they do a fair use, and the original CR owners consider it an infringement The samplers, broadly defined consider what they do a fair use, and the original CR owners consider it an infringement

17. Digital Sampling, Imaging and Multimedia Works Note that sound recording CR owners Note that sound recording CR owners Do have the right to rearrange and remixed the actual sounds from the composer Do have the right to rearrange and remixed the actual sounds from the composer Fair use sampling was allowed in Campbell v. Acuff- Rose Music in part because it was a parody Fair use sampling was allowed in Campbell v. Acuff- Rose Music in part because it was a parody Also the markets were dissimilar—little overlap Also the markets were dissimilar—little overlap Just because the copying is for commercial purposes, does not mean that it cannot be a fair use Just because the copying is for commercial purposes, does not mean that it cannot be a fair use Without parody or social commentary, the scope of fair use sampling is very small Without parody or social commentary, the scope of fair use sampling is very small The Campbell ruling suggests mash-ups are not likely to qualify for fair use treatment because there is no parody The Campbell ruling suggests mash-ups are not likely to qualify for fair use treatment because there is no parody

18. Digital Sampling, Imaging and Multimedia Works Samplers can avoid legal uncertainty by negotiating with the original CR owners Samplers can avoid legal uncertainty by negotiating with the original CR owners Note also that rights of privacy protect the name or likeness of a celebrity from being used without their permission Note also that rights of privacy protect the name or likeness of a celebrity from being used without their permission The right of publicity or privacy is based on state common law The right of publicity or privacy is based on state common law This right is increasingly being expanded by states This right is increasingly being expanded by states Must also be showing by the pl. that the use is commercial Must also be showing by the pl. that the use is commercial

19. Digital Imaging Just as with audio, visual images can be altered Just as with audio, visual images can be altered The Internet facilitates digital photo-shopping The Internet facilitates digital photo-shopping The original photographers are CR owners The original photographers are CR owners Test for CR infringement for digital imagers is the same: Test for CR infringement for digital imagers is the same: It is an infringement if the sampled material includes material that is qualitatively important or distinctive It is an infringement if the sampled material includes material that is qualitatively important or distinctive All the factors that applied to audio sampling apply including whether the sampling is commercial and whether there is some kind of social commentary All the factors that applied to audio sampling apply including whether the sampling is commercial and whether there is some kind of social commentary

20. Digital Imaging With photography, the CR owner does not own rights to photograph nature With photography, the CR owner does not own rights to photograph nature The CR only protects the creative elements of the photography The CR only protects the creative elements of the photography Scanning natural elements is not a CR violation Scanning natural elements is not a CR violation Digital imaging frequently interfaces with moral rights Digital imaging frequently interfaces with moral rights Digital photographic manipulation may distort photographs, such that the artist can file a claim Digital photographic manipulation may distort photographs, such that the artist can file a claim Certainly digital imaging can violate rights of publicity and privacy Certainly digital imaging can violate rights of publicity and privacy On the other hand, public figures cannot prevent their images from being used to sell newspapers and magazines, particularly when there is some kind of social commentary On the other hand, public figures cannot prevent their images from being used to sell newspapers and magazines, particularly when there is some kind of social commentary

21. Multimedia Works Multimedia Multimedia The information is stored digitally, The information is stored digitally, could be interactive, and could be a legal nightmare could be interactive, and could be a legal nightmare Requires a large number of CR permissions Requires a large number of CR permissions The parameters of the permissions are not well defined The parameters of the permissions are not well defined