Intellectual Property Issues in Software (1991) / Chapter Skim
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1 Changing Contexts for the Software Industry
1 Changing Contexts for the Software Industry
Pages 1-20
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lnTeLLecTuaL pRopeRTy Issues In sorTwaRe
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Reichman, Professor of Law, Vanderbilt University I don't think the sky is falling. I think it is sagging in a few places, and primarily because the law hasn't been properly applied.
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Although this characterization fails to convey the enormous range in the size of software firms, as well as in the complexity of computer programs and the underlying design and development efforts, it is accurate insofar as it captures the industry's vitality and its propensity for innovation. Indeed, the software industry possesses all the attributes of a vigorous economic sector: stiff competition, a diverse mixture of firms, rapid sales growth, high rates of commercial innovation, strong performance in international markets, and, as the "idea and a computer" adage suggests, low barriers to entry.
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Some new software products-for example, the first database management systems, the first Fortran compiler, or the first timesharing operation system represented major advances. Most, however, offered incremental improvements, such as support for new hardware models, adaptation to a new market niche, or greater ease of use.
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While many software firms were aware of what intellectual property protection applied to software primarily trade secret law and copyright law- the actions of most firms suggested that legal concerns rarely entered into product-development decisions. The collective behavior of firms served to achieve the constitutional aim on which intellectual property law is based: "to promote the progress of science and the useful arts." More specifically, the software industry achieved the intent of intellectual property law, that is, to advance the public good, an objective widely interpreted to mean the generation and wide dissemination of ideas and innovations.
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As a result, a firm may take advantage of all the available protections.2 "[Ilt is like there is a disease out there," Schneider explained, "and massive doses of mixed antibiotics are best, because I am not sure which one of them is going to be the silver bullet." The uncertainty that Schneider expresses stems from doubts about the scope of intellectual property law and, in particular, how patent and copyright laws apply to the innovative elements embodied in a software product. "The current environment is such that you don't know the right thing to do," said Anita K
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Nonetheless, the steadily growing number of software firms, both in the United States and abroad, means that the population of prospectors combing the terrain for new commercial opportunities is also increasing. Moreover, established firms have already made substantial investments in developing products and building a customer base for those products.
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Although the law is not intended to guarantee profits, ownership rights accorded through the law do provide innovators the opportunity to earn a return on their creative efforts in the market, the ultimate judge of the commercial value of a particular innovation. Eliminate the financial incentive for making software, suggested John F
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"As time has moved on," explained Schneider of IBM, "more and more of the creative output has been focused on interfaces, and that is simply a reflection of the fact that in order to grow in our industry we are spending less energy figuring out how to do task dispatching and memory management and more energy focusing on how to interface with the end user and how to expand the marketplace." The emphasis on developing software that mimics and comple
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While charges of verbatim copying have not disappeared, software firms are now asking the courts to determine whether competitors copied the "look and feel" or "structure, sequence, and organization" of a software product, despite substantial differences in the code of the original and competing products. While all courts agree that a program's functionality is not copyrightable, courts disagree on the extent to which particular elements of a computer program constitute functional subject matter.
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Yet another technological development automated reverse engineering technology has the potential to complicate the application of intellectual property law to software. Already available technology can in certain circumstances decompile, or translate, computer code into a higher-level language, mechanically restructure the program, and generate new computer code that, by appearance, is substantially different from the original.
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Nor, however, did they foresee such developments as motion pictures, record albums, compact disks, and numerous other technologies and expressions now protected by copyright law. To some, the demonstrated flexibility of intellectual property law strongly indicates that the legal system can continue to adapt to new technologies and to handle questions related to software.
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"I submit," he said, "that all of the issues that we are familiar with and that have caused such controversy and emotion in the copyright area concerning 'structure, sequence, and organization' and levels of abstraction are going to be reenacted in the patent context of the doctrine of equivalents." (See chapter 2 for a discussion of this doctrine.) Patent protection, itself, exemplifies how the application of intellectual property law to software has changed.
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Many in the software industry welcome the protection, believing that patent law is the proper legal context in which to address some issues that, because of the presumed unavailability of patent protection, were forced into the domain of copyright law. Critics argue, however, that making patent protection available now amounts to changing the rules in the middle of the game.
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What is needed, he added, are "completely new algorithms." In Rabin's view, one potent incentive would be to provide stronger intellectual property protection. He expressed concern that without the incentive of exclusive rights of ownership, innovators might ignore the need for algorithms, and progress toward effective parallel computing and its numerous anticipated benefits might be impeded.
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"EClompared to computer hardware," said Harvard's Branscomb, "software is still the Achilles heel of the computer and communications industries, responsible for more shipment delays, cost overruns, and user frustrations by a mile." Branscomb later warned against the complacency that can arise when the software industry's past is used as the basis for projecting its future performance. "There is plenty of need," he said, "for new creative ideas, for the skills, tools, and effort to realize software ideas in code that is elegantly and reliably expressed.
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Among these goals, according to Branscomb, are encouraging the creation and diffusion of new concepts and ideas, as well as the dissemination of useful innovations based on these new ideas; encouraging the development of interoperability and connectivity in the interest of equitable public access to the fruits of information technology; generating the investments needed to advance the industry and the knowledge infrastructure on which the industry technological progress is based; and assuring equitable allocation of the benefits of investment, creative genius, and hard work in an efficiently functioning marketplace. "All of that needs to be accomplished on a worldwide level," Branscomb said, ',because software is, of course, a mapr element in international trade, having not only the feature that it is cheap to replicate but also that it is cheap to communicate." At this juncture, well-intentioned people disagree strongly on what legal environment is best for the technology, the industry, and, most important, for the public" today and tomorrow.
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After all, a homeowner who installs strong locks and a burglar alarm does not do so because of uncertainty about the laws regarding burglary. However, the uncertainty that prevails in the software industry adds to the motivation for seeking multiple legal protections.
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Pamela Samuelson, Professor of Law, University of Pittsburgh If we continue to stretch these paradigms [patent and copyright law] too far in order to accommodate the subject matters, .
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