Software copyright: Difference between revisions
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{{Infobox Court Case |
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| name = Sega Enterprises Ltd vs Accolade, Inc. |
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| court = [[United States Court of Appeals for the Ninth Circuit]] |
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| date argued = July 20, 1992 |
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| date decided = Oct. 20, 1992 |
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| amended opinion = Jan. 6, 1993 |
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| full name = Sega Enterprises Ltd vs Accolade, Inc. |
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| citations = 977 F.2d 1510 (9th Cir. 1992) |
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| judges = William Canby, Stephen Reinhardt, and Edward Leavy |
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}} |
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'''Software copyright''' is the relatively recent extension of [[copyright]] law to [[Machine-readable medium|machine-readable]] [[software]]. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of [[copyright]] law, there are a number of distinctive issues that arise with software. This article will primarily focus on topics peculiar to software. |
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Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1992) is a significant case in American intellectual property law. The case involved several overlapping issues, including the scope of [[copyright]], permissible uses for trademarks, and the scope of [[fair use]] for computer code.<ref name="sail_book">Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', pp. 126-141, 248-254</ref> |
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Software copyright is commonly used by [[proprietary software]] companies to prevent the unauthorized copying of their software. [[open source license|Open source licenses]] also rely on copyright law to enforce their terms. For instance, [[copyleft]] licenses impose a duty on licensees to share their modifications to the copylefted work under some circumstances. No such duty would apply had the software in question been in the [[public domain]]. |
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==Facts== |
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==United States== |
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In the late 1980s, [[Sega]] became concerned about software and hardware piracy in Southeast Asia, and particularly in Taiwan. Taiwan was not a signatory of the [[Berne Convention for the Protection of Literary and Artistic Works|Berne Convention]] on copyright, limiting Sega's legal options. However, Taiwan did allow prosecution for trademark infringement. As a result, the [[Mega Drive|Sega Genesis]] III incorporated a technical protection mechanism intended to facilitate trademark suits against companies producing pirate Genesis games. When a game cartridge was inserted, the console would check for the presence of the string "SEGA" at a particular point in memory. If the string was present, the console would display the message: "PRODUCED BY OR UNDER LICENSE FROM SEGA ENTERPRISES LTD." If not, the game wouldn't run. |
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<ref name="sega_opinion">[http://bulk.resource.org/courts.gov/c/F2/977/977.F2d.1510.92-15655.html Sega v. Accolade 977 F.2d 1510 (9th Cir. 1992)]</ref> |
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In the United States, computer programs are literary works, under the definition in the Copyright Act, {{UnitedStatesCode|17|101}} <ref name="apple_v_franklin">[http://digital-law-online.info/cases/219PQ113.htm Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983)]</ref>. |
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Accolade was a legal but unlicensed third-party vendor of Genesis-compatible games. Prior to the release of the Genesis III, they had reverse-engineered a number of Sega games and noted the presence of the 'SEGA' string. Accolade engineers suspected it would at some point be used as an authorization technique and had incorporated the same string into their own games at the appropriate location. |
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Just as with other works, copyright for computer programs prohibits not only literal copying, but also copying of "nonliteral elements", such as program structure and design. These non-literal aspects, however, can be protected only "to the extent that they incorporate authorship in programmer's expression of original ideas, as distinguished from the ideas themselves." <ref name="altai">Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)</ref> |
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In ''[[Computer Associates Int. Inc. v. Altai Inc.|Computer Associates vs Altai]]'', the [[United States Court of Appeals for the Second Circuit|Second Circuit]] proposed the [[Substantial similarity#Abstraction-Filtration-Comparison test|Abstraction-Filtration-Comparison test]] for identifying these protected elements. This test attempts to distinguish copyrightable aspects of a program from the purely utilitarian and the public domain. |
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The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work; as a result, a program can infringe even if no code was copied.<ref name="stern_v_kaufman">Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir.1982) </ref> |
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On October 31, 1991, Sega filed suit in the [[United States District Court for the Northern District of California]]. Sega raised two primary issues: first, that causing the console to display the Sega message was falsely using the Sega trademark and second, that Accolade's reverse engineering had infringed Sega's copyright. On April 3, 1992, the district court ruled that Sega was likely to prevail at trial, and issued a preliminary injunction on behalf of Sega, prohibiting future sales by Accolade of Genesis-compatible games incorporating the Sega message or using the results of the reverse engineering. Accolade appealed to the Ninth Circuit, which overruled the district court. The opinion of the court was given by Judge [[Stephen Reinhardt]]. |
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The set of operations available through the interface is not copyrightable in the United States under ''[[Lotus v. Borland]]'', but it can be protected with a [[patent|utility patent]]. |
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In ''[[Apple v. Microsoft]]'', the courts established that a look and feel copyright claim must demonstrate that specific elements of a user interface infringe on another work. A program's particular combination of user interface elements is not copyrightable. |
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==Reverse Engineering as Fair Use== |
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[[Accolade (company)|Accolade]] had reverse engineered several of Sega's video games in order to develop their own games that would be compatible with Sega’s Genesis console. In doing so, it was undisputed that Accolade actually did copy Sega’s copyright protected object code. The Ninth Circuit held, however, that this copying constituted fair use.<ref name="patentarcade_article">http://www.patentarcade.com/2008/07/case-sega-v-accolade-9th-cir-1992.html</ref> |
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Historically, computer programs were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object: object code was viewed as a utilitarian good produced from source code rather than as a creative work. Due to lack of precedent, this outcome was reached while deciding how to handle copyright of computer programs. The Copyright Office attempted to classify computer programs by drawing an analog: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code<ref name="sail_book">Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 34</ref>. This analogy caused the Copyright Office to issue copyright certificates under its "Rule of Doubt".<ref name="rod">[http://itlaw.wikia.com/wiki/Rule_of_doubt Rule of Doubt]</ref> |
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To reach this result, the court analyzed the four factors determining whether a use is fair. The factors are: (1) the purpose and character of the use, (e.g., is the use commercial? Educational?); (2) the nature of the copyrighted work; (3) the amount and substantiality of the copied material in relation to the copyrighted work as a whole; and (4) the effect on the market. |
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In 1974, the Commission on New Technological Uses of Copyrighted Works (CONTU) was established. CONTU decided that "computer programs, to the extent that they embody an author's original creation , are proper subject matter of copyright."<ref name="sail_book">Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 34</ref> In 1980, congress added the definition of "computer program" to {{UnitedStatesCode|17|101}} and amended {{UnitedStatesCode|17|117}} to allow the owner of the program to make another copy or adaptation for use on a computer. <ref name="sail_book2">Lemley, Menell, Merges and Samuelson. ''Software and Internet Law'', p. 35</ref> |
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This legislation, plus court decisions such as ''Apple v Franklin'' clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they "licensed" but did not sell their products, in order to avoid the transfer of rights to the end user via the [[doctrine of first sale]] (see ''[[Step-Saver Data Systems, Inc. v. Wyse Technology]]''). These [[software license agreement]]s are often labeled as end-user license agreements (EULAs). |
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On the first factor, the court concluded that the purpose and character of Accolade’s use was commercial, but only minimally so. The court stated that Accolade’s use was “intermediate,” and only intended to discover the functional and thus unprotected elements of Sega’s games. Accolade took this functional information and then produced its own games, and according to the court, added to the promotion of creative expression, which is a core principle of the Copyright Act. Therefore, the court found that the first factor weighed in Accolade’s favor. |
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In 1998, Congress passed the [[Digital Millennium Copyright Act]] (DMCA) which criminalizes evasion of copy protection ([[dmca|with certain exceptions]]), destruction or mismanagement of copyright management information, and a clause to except ISPs from liability of infringement if one of their subscribers infringe. In addition, the DMCA extends protection to those who copy a program for maintenance, repair or backup as long as these copies are "destroyed in the event that continued possession of the computer program should cease to be rightful."{{UnitedStatesCode|17|117}} |
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The court's discussion of the second factor highlighted the unique challenges of applying copyright law to software. Ideas embedded in, or functional elements of software are not protected by copyright, but expression of those ideas – the code – is protectable; but how can someone access the functional idea without copying the protected code? Essentially, the court concluded that the only way to get to the unprotected functional elements in the software was for Accolade to copy the entire protected expression of those functional elements, and therefore, this factor, the nature of the copyrighted work, also weighed in Accolade's favor. |
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===EULAs and Rights of End users=== |
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Regarding the third factor, the amount copied, the court reiterated that Accolade had copied entire Sega programs. However, Accolade extracted the functional aspects and then wrote their own expressive code, thus ultimately using only minimal amounts of protected material in the final Accolade game. The court afforded this factor little weight. |
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The Copyright Act expressly permits copies of a work to be made in some circumstances, even without the authorization of the copyright holder. In particular, "owners of copies" may make additional copies for archival purposes, "as an essential step in the utilization of the computer program", or for maintenance purposes. <ref name="sect117">{{UnitedStatesCode|17|117}}</ref> Furthermore, "owners of copies" have the right to resell their copies, under the [[first sale doctrine]] and {{UnitedStatesCode|17|109}}. |
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The court determined that the fourth factor, effect on the market, also weighed in Accolade’s favor. A court may not find fair use if an infringing work would take the place of the original work in the market. But the court notes that the Copyright Act was not intended to create monopolies, it was intended to foster creativity. Thus, the court finds that Accolade’s largely original work is merely an acceptable market competitor of Sega's work. While natural market competition might have a negative financial effect on Sega, the court found that the benefit to consumers compelled a finding that the fourth factor weighed in Accolade’s favor. Therefore, the court found that Accolade had engaged in fair use. |
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These rights only apply to "owners of copies." Most software vendors claim that their products are "licensed, not sold", thus sidestepping {{UnitedStatesCode|17|117}}. American courts have taken varying approaches when confronted with these [[software license agreement]]s. |
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==Trademark== |
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In ''[[MAI Systems Corp. v. Peak Computer, Inc.]]'', ''[[Triad Systems Corp. v. Southeastern Express Co.]]'', and ''Microsoft v Harmony'' <ref name="ms_v_harmony">Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F. Supp. 208 (E.D.N.Y. 1994)</ref>, various Federal courts held that "licensed, not sold" language in an EULA was effective. |
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Other courts have held that "no bright-line rule distinguishes mere licenses from sales...The label placed on a transaction is not determinative".<ref name="vernor_v_autodesk">[http://www.citizen.org/documents/vernororder.pdf Vernor v. Autodesk, Inc., 555 F.Supp.2d 1164 (W.D.Wash. 2008).]</ref> The Ninth Circuit took a similar view (in the specialized context of bankruptcy) in ''Microsoft v DAK''. <ref name="ms_v_dak">Microsoft Corp. v. DAK Indus., Inc., 66 F.3d 1091 (9th Cir. 1995)</ref> |
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===Fair Use=== |
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The Sega code in question, which Accolade incorporated into their games, caused the Genesis system to display the message "Produced by or under license from Sega enterprises ltd". Sega argued that Accolade had infringed their trademark by releasing games that displayed this message without Sega's authorization. Accolade, in turn, argued that Sega was at fault for displaying this message and falsely claiming credit for Accolade's games. |
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Fair use is a defense to an allegation of copyright infringement under section 107 of the Copyright Act. This section describes some of the uses of copyrighted software that courts have held to be fair. |
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The 9th Circuit held for Accolade. Accolade prominently labeled their games as "not authorized by Sega", and the Sega message was only displayed as a byproduct of necessary steps to get the games to run. Accolade had no intention to mislead. In contrast, Sega deliberately was trying to limit competition in the video games market -- an impermissable grounds for falsely claiming credit for games produced by legitimate competitors. |
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In ''[[Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.| Galoob v. Nintendo]]'', the 9th Circuit held that modification of copyright software for personal use was fair. In ''[[Sega v. Accolade]]'', the 9th Circuit held that making copies in the course of reverse engineering is a fair use, when it is the only way to get access to the "ideas and functional elements" in the copyrighted code, and when "there is a legitimate reason for seeking such access". |
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== |
==India== |
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*[[Vault Corp. v. Quaid Software Ltd.]] |
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* [http://bulk.resource.org/courts.gov/c/F2/977/977.F2d.1510.92-15655.html The full text of the opinion] |
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Software is copyrightable in India, but enforcement is very difficult. <ref>[http://www.linuxinsider.com/story/50421.html Meeker, Heather, "Only in America? Copyright Law Key to Global Free Software Model, LinuxInsider, May 16, 2006]</ref> |
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==Canada== |
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In Canada software is protected as a literary work under the [[Copyright Act of Canada]]. Copyright is acquired automatically when an original work is generated, the creator is not required to register or mark the work with the copyright symbol in order to be protected<ref>http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/wr00090e.html</ref>. The rights holder is granted: the exclusive right of reproduction, the right to rent the software, the right to restrain others from renting the software and the right to assign or license the copyright to others. Exceptions to these rights are set out by the terms of [[Fair_dealing#Fair dealing in Canada|Fair Dealing]], these exempt users from copyright liability covering usage and reproduction when performed for private study, criticism or research. |
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Changes to the Copyright Act in regards to digital copyright were debated in the Canadian Parliament in 2008. [[Bill C-61 (39th Canadian Parliament%2C 2nd Session)|Bill C-61]] proposed alterations of the breadth and depth of exemptions for uses such as personal back-ups, reverse engineering and security testing. |
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==Copyleft== |
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A [[copyleft]] is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.<ref>Defined at http://www.fsf.org/licensing/essays/categories.html, with rationale and more detail at http://www.fsf.org/licensing/essays/copyleft.html.</ref> |
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==References== |
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{{reflist}} |
{{reflist}} |
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==See also== |
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[[Category:1992 in law]] |
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*[[Copyleft]] |
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[[Category:United States copyright case law]] |
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*[[Copyright infringement of software]] |
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[[Category:United States Court of Appeals cases]] |
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*[[Copyright law]] |
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*[[Free software licence]] |
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*[[Software license agreement]] |
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*[[Software patent]] |
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[[ja:ソフトウェア著作権]] |
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Revision as of 05:22, 17 November 2009
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Software copyright is the relatively recent extension of copyright law to machine-readable software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article will primarily focus on topics peculiar to software.
Software copyright is commonly used by proprietary software companies to prevent the unauthorized copying of their software. Open source licenses also rely on copyright law to enforce their terms. For instance, copyleft licenses impose a duty on licensees to share their modifications to the copylefted work under some circumstances. No such duty would apply had the software in question been in the public domain.
United States
In the United States, computer programs are literary works, under the definition in the Copyright Act, 17 U.S.C. § 101 [1].
Just as with other works, copyright for computer programs prohibits not only literal copying, but also copying of "nonliteral elements", such as program structure and design. These non-literal aspects, however, can be protected only "to the extent that they incorporate authorship in programmer's expression of original ideas, as distinguished from the ideas themselves." [2] In Computer Associates vs Altai, the Second Circuit proposed the Abstraction-Filtration-Comparison test for identifying these protected elements. This test attempts to distinguish copyrightable aspects of a program from the purely utilitarian and the public domain.
The graphics, sounds, and appearance of a computer program also may be protected as an audiovisual work; as a result, a program can infringe even if no code was copied.[3] The set of operations available through the interface is not copyrightable in the United States under Lotus v. Borland, but it can be protected with a utility patent. In Apple v. Microsoft, the courts established that a look and feel copyright claim must demonstrate that specific elements of a user interface infringe on another work. A program's particular combination of user interface elements is not copyrightable.
History
Historically, computer programs were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object: object code was viewed as a utilitarian good produced from source code rather than as a creative work. Due to lack of precedent, this outcome was reached while deciding how to handle copyright of computer programs. The Copyright Office attempted to classify computer programs by drawing an analog: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code[4]. This analogy caused the Copyright Office to issue copyright certificates under its "Rule of Doubt".[5]
In 1974, the Commission on New Technological Uses of Copyrighted Works (CONTU) was established. CONTU decided that "computer programs, to the extent that they embody an author's original creation , are proper subject matter of copyright."[4] In 1980, congress added the definition of "computer program" to 17 U.S.C. § 101 and amended 17 U.S.C. § 117 to allow the owner of the program to make another copy or adaptation for use on a computer. [6]
This legislation, plus court decisions such as Apple v Franklin clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they "licensed" but did not sell their products, in order to avoid the transfer of rights to the end user via the doctrine of first sale (see Step-Saver Data Systems, Inc. v. Wyse Technology). These software license agreements are often labeled as end-user license agreements (EULAs).
In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) which criminalizes evasion of copy protection (with certain exceptions), destruction or mismanagement of copyright management information, and a clause to except ISPs from liability of infringement if one of their subscribers infringe. In addition, the DMCA extends protection to those who copy a program for maintenance, repair or backup as long as these copies are "destroyed in the event that continued possession of the computer program should cease to be rightful."17 U.S.C. § 117
EULAs and Rights of End users
The Copyright Act expressly permits copies of a work to be made in some circumstances, even without the authorization of the copyright holder. In particular, "owners of copies" may make additional copies for archival purposes, "as an essential step in the utilization of the computer program", or for maintenance purposes. [7] Furthermore, "owners of copies" have the right to resell their copies, under the first sale doctrine and 17 U.S.C. § 109.
These rights only apply to "owners of copies." Most software vendors claim that their products are "licensed, not sold", thus sidestepping 17 U.S.C. § 117. American courts have taken varying approaches when confronted with these software license agreements. In MAI Systems Corp. v. Peak Computer, Inc., Triad Systems Corp. v. Southeastern Express Co., and Microsoft v Harmony [8], various Federal courts held that "licensed, not sold" language in an EULA was effective. Other courts have held that "no bright-line rule distinguishes mere licenses from sales...The label placed on a transaction is not determinative".[9] The Ninth Circuit took a similar view (in the specialized context of bankruptcy) in Microsoft v DAK. [10]
Fair Use
Fair use is a defense to an allegation of copyright infringement under section 107 of the Copyright Act. This section describes some of the uses of copyrighted software that courts have held to be fair. In Galoob v. Nintendo, the 9th Circuit held that modification of copyright software for personal use was fair. In Sega v. Accolade, the 9th Circuit held that making copies in the course of reverse engineering is a fair use, when it is the only way to get access to the "ideas and functional elements" in the copyrighted code, and when "there is a legitimate reason for seeking such access".
India
Software is copyrightable in India, but enforcement is very difficult. [11]
Canada
In Canada software is protected as a literary work under the Copyright Act of Canada. Copyright is acquired automatically when an original work is generated, the creator is not required to register or mark the work with the copyright symbol in order to be protected[12]. The rights holder is granted: the exclusive right of reproduction, the right to rent the software, the right to restrain others from renting the software and the right to assign or license the copyright to others. Exceptions to these rights are set out by the terms of Fair Dealing, these exempt users from copyright liability covering usage and reproduction when performed for private study, criticism or research. Changes to the Copyright Act in regards to digital copyright were debated in the Canadian Parliament in 2008. Bill C-61 proposed alterations of the breadth and depth of exemptions for uses such as personal back-ups, reverse engineering and security testing.
Copyleft
A copyleft is a type of copyright license that allows redistributing the work (with or without changes) on condition that recipients are also granted these rights.[13]
References
- ^ Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983)
- ^ Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992)
- ^ Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir.1982)
- ^ a b Lemley, Menell, Merges and Samuelson. Software and Internet Law, p. 34
- ^ Rule of Doubt
- ^ Lemley, Menell, Merges and Samuelson. Software and Internet Law, p. 35
- ^ 17 U.S.C. § 117
- ^ Microsoft Corp. v. Harmony Computers & Elecs., Inc., 846 F. Supp. 208 (E.D.N.Y. 1994)
- ^ Vernor v. Autodesk, Inc., 555 F.Supp.2d 1164 (W.D.Wash. 2008).
- ^ Microsoft Corp. v. DAK Indus., Inc., 66 F.3d 1091 (9th Cir. 1995)
- ^ Meeker, Heather, "Only in America? Copyright Law Key to Global Free Software Model, LinuxInsider, May 16, 2006
- ^ http://www.cipo.ic.gc.ca/epic/site/cipointernet-internetopic.nsf/en/wr00090e.html
- ^ Defined at http://www.fsf.org/licensing/essays/categories.html, with rationale and more detail at http://www.fsf.org/licensing/essays/copyleft.html.