Computer Software Intro to IP – Prof Merges

Lotus v. Borland Menu Command Hierarchies /C – R – 2- Return District Ct., 1 st Cir., Sup Ct

District Court Idea-Expression No Merger Idea: operate a spreadsheet; particular expression protectable

1 st Cir Decision Menu commands are a “method of operation” akin to the accctg forms in the Baker v Seldon case

17 USC 102(b) 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.

Questions What about object code? All user interfaces?

Boudin Concurrence More flexible “privilege” Take into account context, especially standards

Menell, Merges: “Technological Genericide” Can a standard become so successful that it should be deemed functional, or “an essential system,” or otherwise unprotectable?

Merges, “Locke for the Masses: Property Rights and the Products of Collective Creativity,” 36 Hofstra L. Rev (2008)

Locke's central insight - that laboring on unowned resources ought (with exceptions and qualifications) to justify appropriation - suggests the desirability of granting some form of property interest over the products of collaborative creativity.

Section 117 Rights (a) Making of Additional Copy or Adaptation by Owner of Copy. — Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy...

2 approaches to “ownership” 9 th Cir: MAI v Peak, 991 F.2d 511 (9 th Cir. 1993) – Formalist approach; who retains legal title? 2 nd Cir: Krause v. Titleserv, 402 F.3d 119 (2005) – More flexible approach

What is a copy? RAM copies are “copies” under 117: MAI v Peak, supra But: 4 th Cir.’s “volition or causation” standard and ISP liability: CoStar v. Loopnet, 373 F.3d 544 (4 th Cir. 2004)

Maintenance and repair issue (c) Machine Maintenance or Repair. — Notwithstanding the provisions of section 106, 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 such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine...

(1) the “maintenance” of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine; and (2) the “repair” of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine.