computer protection for computer programs and digital media david baumer spring, 2005

Computer Protection for Computer Protection for Computer Programs and Computer Programs and

Digital MediaDigital Media

David Baumer David Baumer

Spring, 2005Spring, 2005

CR Protection for Computer CR Protection for Computer ProgramsPrograms

In 1976 Congress agreed that computer In 1976 Congress agreed that computer programs could be protected by CR lawprograms could be protected by CR law Note that software has an Note that software has an expressive expressive

dimensiondimension and an and an operational sideoperational side CCR protection extends only to expression not R protection extends only to expression not

functionalityfunctionality Clearly CR protection includes code, but after that it Clearly CR protection includes code, but after that it

is questionable as to what is includedis questionable as to what is included The scope of The scope of protectible expressionprotectible expression is the subject is the subject

matter of this chaptermatter of this chapter The resolution of this issue decided some of the most The resolution of this issue decided some of the most

important software cases since 1980. 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 Most of the relevant law has come from CL decisions of the courts the courts


Distinguishing between expression Distinguishing between expression and the idea is an inexact artand the idea is an inexact art If only If only the wordsthe words are protected in a novel, are protected in a novel,

it is akin to protecting only it is akin to protecting only the codethe code With that level of protection, only the names With that level of protection, only the names

could be changed in a novel and the second could be changed in a novel and the second work would not be an infringementwork would not be an infringement

On the other hand, the plot, organization, and On the other hand, the plot, organization, and characters could be protected—similar to characters could be protected—similar to protection of the SSO of softwareprotection of the SSO of software


The The purpose of CR law is not to purpose of CR law is not to convey monopolyconvey monopoly on the author on the author Therefore the Therefore the availability of substitutesavailability of substitutes

is very important in CR/software lawis very important in CR/software law It is a mistake to interpret CR law creating a It is a mistake to interpret CR law creating a

monopolymonopoly Standard literary accounts, called scenes a Standard literary accounts, called scenes a

faire are not protectible under CR law— e.g., faire are not protectible under CR law— e.g., a king’s coronationa king’s coronation

These same principles were then applied to These same principles were then applied to computer software with mixed results computer software with mixed results


The courts groped with how to The courts groped with how to protect computer programs and protect computer programs and initially were very protectiveinitially were very protective Whelan v. JaslowWhelan v. Jaslow

Origin of the Origin of the look and feel testlook and feel test Essentially the same program was Essentially the same program was

developed using two different source codesdeveloped using two different source codes CR protection for the SSO of the programCR protection for the SSO of the program Look and feel test should only be applied Look and feel test should only be applied

only if virtually all of the program is only if virtually all of the program is considered protectibleconsidered protectible


1994 Apple v. Microsoft1994 Apple v. Microsoft Apple sued based on the similarities between Apple sued based on the similarities between

Windows and its (MacIntosh’s) graphical Windows and its (MacIntosh’s) graphical interfaceinterface

After stripping out what was not protectible, there After stripping out what was not protectible, there was virtually nothing left to compare, hence the look was virtually nothing left to compare, hence the look and feel test was not appliedand feel test was not applied

Apple had licensed a part of WindowsApple had licensed a part of Windows and the rest and the rest was either functional or was deemed part of the ideawas either functional or was deemed part of the idea

If a program is too successful it becomes an industry If a program is too successful it becomes an industry standardstandard and therefore not protectible and therefore not protectible

Similar to the fate of generic TM’sSimilar to the fate of generic TM’s If there is only one way to accomplish a task then it is If there is only one way to accomplish a task then it is

not protectible under CR lawnot protectible under CR law


Note that CR law does protect codeNote that CR law does protect code Source, object, micro, and code embedded on Source, object, micro, and code embedded on

hardware such as Read-Only chipshardware such as Read-Only chips User interfacesUser interfaces

The The Lotus v. PaperbackLotus v. Paperback case established protection case established protection for user interfaces, using Whelan as its authorityfor user interfaces, using Whelan as its authority

This case has not been followed, particularly after the This case has not been followed, particularly after the courts allowed patents to protect various aspects of courts allowed patents to protect various aspects of software including software including

business application programs, operating systems, expert business application programs, operating systems, expert systems, user interfaces, and data processing systemssystems, user interfaces, and data processing systems


Modern analysis relies on abstraction, Modern analysis relies on abstraction, filtration, and comparisonfiltration, and comparison Abstract the code, structure, organization, Abstract the code, structure, organization,

function and purposefunction and purpose Filter out items based on efficiency, functionality Filter out items based on efficiency, functionality

and items in the and items in the public domainpublic domain These are all part of the idea and thus not protectibleThese are all part of the idea and thus not protectible Note that Note that standard programming toolsstandard programming tools are in the public are in the public

domain, e.g., domain, e.g., shopping cart for e-commerce sitesshopping cart for e-commerce sites Then compare the def.’s program with the CR’ed Then compare the def.’s program with the CR’ed

programprogram After all the filtering, there is often not much to After all the filtering, there is often not much to

comparecompare


Protection for user interfaces was Protection for user interfaces was further diminished by the further diminished by the Lotus v. Lotus v. BorlandBorland decision decision The court indicated that the The court indicated that the Lotus Lotus

command hierarchycommand hierarchy serves as the serves as the method method of operationof operation

It cannot be separated from the idea of It cannot be separated from the idea of the spreadsheetthe spreadsheet

It is similar to the command system of a It is similar to the command system of a VCRVCR

International CR Protection of International CR Protection of Computer ProgramsComputer Programs

Again the have and have not issue arisesAgain the have and have not issue arises In 1991 the EU In 1991 the EU

Provides similar CR protection for software Provides similar CR protection for software that is available in the U.S. 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 Right to make an archival copyarchival copy Reverse engineeringReverse engineering is allowed for purposes of is allowed for purposes of

discovering underlying ideas and interoperabilitydiscovering underlying ideas and interoperability Decompilation is a form of reverse engineeringDecompilation is a form of reverse engineering

International CR Protection of International CR Protection of Computer ProgramsComputer Programs

CR protection of software is included in CR protection of software is included in TRIPSTRIPS

WTO members are required to protect software as WTO members are required to protect software as though it was a literary workthough it was a literary work

How much more this is than just the code is cloudy at How much more this is than just the code is cloudy at bestbest

Owners of software can prevent rentals of their work, Owners of software can prevent rentals of their work, which is consistent with the exception to the first sale which is consistent with the exception to the first sale rule in U.S. CR lawrule in U.S. CR law

Having laws on the books is one thing, Having laws on the books is one thing, enforcement is anotherenforcement is another

In some countries, 90 percent of the software used has In some countries, 90 percent of the software used has been is piratedbeen is pirated

Reverse Engineering of Computer Reverse Engineering of Computer ProgramsPrograms

For CR owners of software, they are aware For CR owners of software, they are aware that CR law only protects expressions of that CR law only protects expressions of ideasideas Defining where the line is between ideas and Defining where the line is between ideas and

expression is difficultexpression is difficult The clean room - dirty room technique is a The clean room - dirty room technique is a

means of avoiding CR liabilitymeans of avoiding CR liability In the dirty room the ideas embedded within the In the dirty room the ideas embedded within the

software are identifiedsoftware are identified The ideas are then transmitted to the clean room and The ideas are then transmitted to the clean room and

programmers wrote code to accomplish those ideasprogrammers wrote code to accomplish those ideas CR liability is avoided because the clean room folks never CR liability is avoided because the clean room folks never

had access to the CR’ed materialhad access to the CR’ed material Independent creation is a defenseIndependent creation is a defense


The first IBM clones were made using the The first IBM clones were made using the clean room techniqueclean room technique Clean room – dirty room techniques still rely on Clean room – dirty room techniques still rely on

the dirty room being able to differentiate the dirty room being able to differentiate between ideas and expressionbetween ideas and expression

Dirty room folks must not copy the software or even Dirty room folks must not copy the software or even make notes and program listingsmake notes and program listings

Since most software is sold or circulated as Since most software is sold or circulated as object code, that code must be decompiled into object code, that code must be decompiled into source codesource code

Sega v. AccoladeSega v. Accolade stands for the proposition that stands for the proposition that decompilation is not a copyright violation if it is for the decompilation is not a copyright violation if it is for the purpose of purpose of interoperabilityinteroperability

It is a fair useIt is a fair use


Decompilation also allows for Decompilation also allows for discovery of trade secretsdiscovery of trade secrets Decompilation is allowed as long as there Decompilation is allowed as long as there

is no other way of gaining access to the is no other way of gaining access to the ideas embedded in the softwareideas embedded in the software

The reason for gaining access must be The reason for gaining access must be legitimatelegitimate

Certainly interoperability is legitimateCertainly interoperability is legitimate Decompilation to gain interoperability trumps Decompilation to gain interoperability trumps

license agreements according to most legal license agreements according to most legal authorities, particularly in the mass market authorities, particularly in the mass market

EU agrees that decompilation for EU agrees that decompilation for interoperability is a fair useinteroperability is a fair use


The decision in Sega enabled The decision in Sega enabled Connectix to prevail over Sony in Connectix to prevail over Sony in case wherecase where Connectix decompiled Sony’s Virtual Connectix decompiled Sony’s Virtual

Play Station in order to make it operate Play Station in order to make it operate on a Macon a Mac

Court agreed with the def. that the Court agreed with the def. that the decompilation was a fair usedecompilation was a fair use

Digital Sampling, Imaging and Digital Sampling, Imaging and Multimedia WorksMultimedia Works

Digital audio samplingDigital audio sampling Pre-recorded sounds are manipulated to Pre-recorded sounds are manipulated to

form new soundsform new sounds Slow downs, speed up, raise or lower pitchSlow downs, speed up, raise or lower pitch Basically involves integration of the work of Basically involves integration of the work of

another into your musical workanother into your musical work Mash ups—mixing lyrics from one CR’ed Mash ups—mixing lyrics from one CR’ed

work with the melody of another CR’ed workwork with the melody of another CR’ed work The samplers, broadly defined consider The samplers, broadly defined consider

what they do a what they do a fair usefair use, and the original , and the original CR owners consider it an infringementCR owners consider it an infringement


Note that sound recording CR owners Note that sound recording CR owners Do have the right to rearrange and remixed the Do have the right to rearrange and remixed the

actual sounds from the composeractual sounds from the composer Fair use sampling was allowedFair use sampling was allowed in Campbell v. in Campbell v.

Acuff-Rose Music in part because it was a Acuff-Rose Music in part because it was a parodyparody Also the markets were dissimilar—little overlapAlso the markets were dissimilar—little overlap Just because the copying is for commercial purposes, Just because the copying is for commercial purposes,

does not mean that it cannot be a fair usedoes not mean that it cannot be a fair use Without Without parody or social commentaryparody or social commentary, the scope of fair , the scope of fair

use sampling is very smalluse sampling is very small The Campbell ruling suggests mash-ups are not likely to The Campbell ruling suggests mash-ups are not likely to

qualify for fair use treatment because there is no parodyqualify for fair use treatment because there is no parody


Samplers can avoid legal uncertainty by Samplers can avoid legal uncertainty by negotiating with the original CR ownersnegotiating with the original CR owners Note also that rights of privacy protect the Note also that rights of privacy protect the

name or likeness of a celebrity from being name or likeness of a celebrity from being used without their permissionused without their permission

The The right of publicityright of publicity or privacy is based on state or privacy is based on state common lawcommon law

This right is increasingly being expanded by This right is increasingly being expanded by statesstates

Must also be showing by the pl. that the use is Must also be showing by the pl. that the use is commercialcommercial

Digital ImagingDigital Imaging

Just as with audio, visual images can Just as with audio, visual images can be alteredbe altered The Internet facilitates digital photo-The Internet facilitates digital photo-

shoppingshopping The original photographers are CR ownersThe original photographers are CR owners

Test for CR infringement for digital imagers is Test for CR infringement for digital imagers is the same: the same:

It is an infringement if the sampled material includes It is an infringement if the sampled material includes material that is qualitatively important or distinctivematerial that is qualitatively important or distinctive

All the factors that applied to audio sampling apply All the factors that applied to audio sampling apply including whether the sampling is including whether the sampling is commercialcommercial and and whether there is some kind of whether there is some kind of social commentarysocial commentary

Digital ImagingDigital Imaging With photography, With photography, the CR owner does not own the CR owner does not own

rights to photograph naturerights to photograph nature The CR only protects the creative elements of the The CR only protects the creative elements of the

photographyphotography Scanning natural elements is not a CR violationScanning natural elements is not a CR violation

Digital imaging frequently interfaces with moral Digital imaging frequently interfaces with moral rightsrights Digital photographic manipulation may distort Digital photographic manipulation may distort

photographs, such that the artist can file a claimphotographs, such that the artist can file a claim Certainly digital imaging can violate rights of Certainly digital imaging can violate rights of

publicity and privacypublicity and privacy On the other hand, public figures cannot prevent their On the other hand, public figures cannot prevent their

images from being used to sell newspapers and magazines, images from being used to sell newspapers and magazines, particularly when there is some kind of particularly when there is some kind of social commentarysocial commentary

Multimedia WorksMultimedia Works

MultimediaMultimedia The information is stored digitally, The information is stored digitally, could be interactive, and could be a could be interactive, and could be a

legal nightmarelegal nightmare Requires a large number of CR permissionsRequires a large number of CR permissions The parameters of the permissions are not The parameters of the permissions are not

well definedwell defined

computer protection for computer programs and digital media david baumer spring, 2005

Documents

computer protection

computer programs

functionality cr protection

purpose of cr law

computer software

level of protection

crsoftware law

relevant law