An Analysis of the Scope of Copyright Protection for Application Programs

Abstract

pally under copyright law, 2 notwithstanding the fundamental principle that copyright cannot protect "any idea, procedure, process, system, method of operation, concept, principle, or discovery." 3 Congress implemented CONTU's recommendation in its 1980 amendments to federal copyright law. 4 In light of the computer software industry's relative youth and anticipated rapid growth, 5 CONTU's rough empirical judgment that copyright would best promote the invention, development, and diffusion of new and better software products was, by necessity, highly speculative. As CONTU recognized, it was impossible in 1978 to establish a precise line between copyrightable expression of computer programs and the uncopyrightable processes that they implement. 6 Yet the location of this line-referred to as the idea/expression distinction 7-was critical to the rough and highly speculative cost-benefit analysis that guided CONTU's recommendation. Drawing the line too liberally in favor of copyright protection would bestow strong monopolies over specific applications upon the first to write programs performing those applications and would thereby inhibit other creators from developing 2. See CONTU REPORT, supra note 1, at 1. But see id at 27-37 (Commissioner Hersey, dissenting) (arguing that "forcible wrenching" would be required to protect computer programs under the copyright law); iL at 37-38 (Commissioner Karpatkin, dissenting) (same); cf. id at 26-27 (Commissioner Nimmer, concurring) (warning that CONTU recommendations might take copyright law "beyond the breaking point," converting it into a general misappropriation law).

An Introduction to the Law and Economics of Intellectual Property

“…The Copyright Office has announced as its position that all the copyrightable expression embodied in a computer program, including screen displays, is to be considered as a single work (53 Federal Register, 21817-20, June 10, 1988). By reversing its earlier position of accepting screen displays for separate registration and deposit, the Office has placed itself at odds with the courts 8 and with some commentators (Menell, 1989).…”

“…In either case, providing intellectual property protection would grant considerable market power to the owner of the right to control the standardized interface. For this reason, Menell (1989) has argued that courts should give only "thin" copyright protection to screen displays by finding infringement only on a showing of actual copying.…”

What is the Impact of Software Patent Shifts?: Evidence from Lotus v. Borland

“…If patent and copyright protections are substitutes, then the weakening of one form of protection should be associated with an increasing reliance on the other. 1 We rely on this methodology because there is no single event that unambiguously established the patentability of software, while this had the 1 The view that patents and copyrights are substitutes has emerged from a considerable number of legal and economic analyses of these questions that have been informed by practitioner discussions, including Menell [1989], Lemley and O' Brien [1997], and Mowery and Graham [2003]. It is still possible, however, that patents and copyrights are not substitutes.…”

Open source software and software patents: A constitutional perspective

“…This essay will not explore the reasoning that the Congress-appointed National Commission on New Technological Uses of Copyrighted Works (CONTU) used to extend copyright rather than copyright protection to computer software (see Menell, 1989). Suffice to say that, so strong was the bias toward copyright protection, that the U.S. Patent Office during the 1970s refused to grant patent protection to any device that employed computer software.…”