Software copyright
 | This article has multiple issues. Please help improve it or discuss these issues on the talk page. (Learn how and when to remove these messages)
No issues specified. Please specify issues, or remove this template. |
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].
Original graphics, designs, and text appearing in a software user interface may qualify as copyrightable look and feel. [citation needed] They can also be protected with a design patent.
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 transfixing a computer program into the memory of an electronic information system is not permanent without a storage device, and because programs were regarded as a simple list of instructions for the computer to process and hence not copyrightable. Computer companies, therefore, used software license agreements (also known as "end-user license agreements" or EULAs) to prevent unauthorized copying.
When the federal courts interpreted the Copyright Act to give computer programs the same copyright status as literary works, companies continued to license their products to avoid transfer of their copyright to the end user via the doctrine of first sale (see Step-Saver Data Systems, Inc. v. Wyse Technology). They also wanted to retain search and seizure powers to uncover unauthorized copying. [citation needed]
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 [2]. 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 [3], 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"[4]. The Ninth Circuit took a similar view (in the specialized context of bankruptcy) in Microsoft v DAK [5].
Fair Use
Fair use is a defense to an allegation of copyright infringement under section 107 of the Copyright Act. Courts use a four factor test to determine the validity of the fair use defense. The court will weigh each factor, and no factor is dispositive. 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.
The fair use defense is applicable to claims of software copyright infringement. In Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1992), the defendant, Accolade, successfully employed the fair use defense. Accolade had reverse engineered several of Sega’s video games so that Accolade could create its 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. To determine whether Accolade engaged in fair use, the court analyzed the four factors mentioned above.
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.
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.
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.
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.
The Fair Use defense is applicable to other forms of electronic media on the internet. For example, a search engine may, without permission, copy copyrighted images into its database and display thumbnails of those images in response to user searches. The copy is considered fair use and intended to direct the searcher to the full-size image. Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003).
India
Software is copyrightable in India, but enforcement is very difficult. [6]
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[7]. 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.[8]
References
- ^ Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983)
- ^ 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.