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engineering provisions if a defendant introduces some—it is impossible to say how much, since we have no judicial guidance25—variation on the original design.

It is possible that, in time, Congress will enact a legislative "fix" that will remedy at least some of the law's shortcomings. However, as the technology continues to develop, will Congress, or the law itself, keep pace? Unlike the Copyright and Patent Acts, the sui generis SCPA has neither a flexible and expansive subject matter nor a historic body of principles and precedents for adapting to changes without repeated congressional action.26

Moreover, the solutions in the United States, be they judicial, legislative or administrative, may differ greatly from the solutions abroad, since for a sui generis scheme of protection there is no common body of copyright or patent principles or multilateral treaty to guide the courts, legislatures, and administrative agencies in other countries.


I acknowledge with gratitude the substantial contributions to this chapter by Jesse M. Feder, Esq., my colleague at Schwab Goldberg Price & Dannay. In the technical discussion, I am heavily indebted to the expertise of Drs. Praveen Chaudhari, Tak Ning, and Webster Howard, of the IBM Corporation, for an appreciation of the present state of the semiconductor industry and its possible future directions. In all cases, however, I am solely responsible for the interpretation that appears in this chapter and for any error or omission it might contain.


Neither of the decisions rendered in Brooktree Corp. v. Advanced Micro Devices, Inc., 705 F. Supp. 491 (S.D. Cal. 1988) (order denying preliminary injunction) and 757 F. Supp. 1088 (1990) (order denying defendant's motion for judgment notwithstanding the verdict) illuminate this issue.


Although it is beyond the limited scope of this case study, I think it is instructive to contrast the experience of chip protection under the SCPA with the experience of computer program protection under copyright law. Congress amended the Copyright Act in 1980 essentially only to confirm the explicit congressional recognition in 1976 of computer programs as copyrightable literary works. Pub. L. No. 96-517, 94 Stat. 3015, 3028. In 1990, Congress granted a rental right to computer program copyright owners, as it had already done to owners of copyrights in sound recordings. Pub. L. No. 101-650, 104 Stat. 5089, 5134, 5135. No further recourse to Congress has been necessary.

Since the passage of the 1976 act, the technology of software engineering and the shape of the software industry have evolved considerably. Many new and difficult issues have arisen. Notwithstanding concerns expressed by some commentators (see Chapter 11) the courts have met these challenges successfully by applying traditional copyright principles. Moreover, there is a growing international consensus that computer programs are literary works protected under the Berne Convention.

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