Copyright Principles in Action

1. An early case recognizing the that programming code could be the subject of copyright was Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983)(source and object codes are protectable; operating system code also protectable citing the Act, sec 101 that a computer program is "a set of ... instructions to be used directly or indirectly in a computer in order to bring about a certain result" regardless of whether readable by human beings (object code and codes embodied in ROM); not solely an "idea" since the underlying idea could be expressed in several different programs all of which [so long as not substantially the same] could be copyrighted).

2. In Whelan Assocs. Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222 (3d Cir. 1986) the court held that as well as the individual instructions, the structure, sequence, and organization of a program deserved protection. Some other courts have criticized Whelan as too abstract in its definition of "idea" leaving everything else at a less abstract level as within the protection of the Copyright Act.

3. Lotus Development Corp. v. Paperback Software, Int'l, 740 F.Supp. 37 (D.Mass. 1990) was a decision holding that defendant's "user interface" had infringed the interface of Lotus 1 - 2- 3, the popular spreadsheet program, with some attention given to protecting the "touch and feel" apparent to the user.

4. Computer Associates Int'l, Inc. v. Altai Inc., 982 F.2d 693 (2d Cir. 1992) improved on the Whelan approach (especially as to non-literal features) by developing a complex, three-step analysis (abstraction/filtration/comparison). Using it, the court found a critical subroutine that "adapted" scheduling software to different mainframe operating systems not infringing of plaintiff's program which accomplished the same result, even though defendant's version was written by a former programmer of plaintiff hired away from plaintiff for that purpose. The "filtration" step in particular looks at places where the need to efficiently effectuate the idea -- especially where there are only a limited number of ways to do that -- requires that the instructions be merged with the idea and are thus not protectable.

5. A computer owner-user probably may make minor adaptations to be sure the software runs on its own computer (but it could not commercially distribute further copies of the adapted software) without fear of infringing. See Midway Mfg. v. Strohon, 564 F.Supp. 741 (N.D. Ill. 1983). See also Act, sec. 117.

6. Despite the general unavailability of the fair use defense when wholesale software copying by a commercial entity is involved, at least one court has upheld that defense when the defendant legally acquired one copy, then had it decompiled and analyzed so that its own programmers could construct a flow-chart and begin top-down programming to create a new program designed to perform some of the same functions. Along the way, the court found "copies" were made by the defendant. Under the fair use factors, initially things looked bad for the defendant: the use was commercial in one sense (i.e. it was a marketing rival of the copyright holder). But the court found this seemingly commercial purpose to have been mitigated by the fact that the infringing copies were never intended to be sold, but were only needed for the reverse engineering process. As to the quantity copied, the court noted that 100% was copied but reasoned that 100% was necessary for the reverse engineering process to work. The "idea" behind the code could not be understood without examining the expression of the enabling details which examination required the technical copying. Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510, 1522 - 1526 (9th Cir. 1992); cf. DSC Communications Corp. v. DGI Techologies, Inc., 81 F.3d 597 (5th CIr. 1996)(copyright misuse defense upheld).

7. Of course, blatant copying via the "copy" command is infringing unless permitted by the terms of the software license. Employees, including student employees, tasked to work with university computers can visit vicarious liability upon a university for such copying. The institution might escape liability as a contributory infringer if the individual were running a covert bootleg production-marketing operation, but if the illegal copies were merely being used on university machines for university purposes, vicarious liability would very likely follow.

8. The University of Oregon was sued under copyright law by six major software companies for having "bootleg" copies of their programs on the hard drives or servers in one of its units. Employees had apparently made additional copies after purchasing (really licensing) only one copy and this was known by at least one administrator in the unit. The multiple copies were then used in teaching students how to use the software. Despite the mitigating circumstances that the University had been a Beta-test site for the early versions of some of these programs and that training students to be adept at using these programs would redound to the benefit of plaintiffs’ markets (since the graduates would very likely want to use those same programs with which they had become proficient in the future), the University was forced to settle the case for fear of very considerable liability if the case were to go to trial.