Software protection

Throughout the 60-some years of modern programming, computer software has not seemed to fit as easily as computer hardware within the traditional intellectual property framework. Most intellectual property protection for software has come through copyright and trade secret laws, and some through patent law, but software developers and users, the courts, and policymakers have engaged in a continual attempt to sort out what should or shouldn’t be protected (from a social perspective) and what is or isn’t protected (according to current law).

By the mid-1970s, this "software protection debate" helped motivate Congress to mandate the National Commission on New Technological Uses of Copyrighted Works (CONTU) to consider the question of how best to treat software. CONTU’s recommendation that copyright protection be explicitly extended to computer programs was reflected in the 1980 amendments to the Copyright Act.

But the debate was not put to rest, particularly with regard to the appropriate scope of copyright protection. In its 1978 report, CONTU had recognized certain difficulties in applying copyright to software, especially in distinguishing between the copyrightable “expression‘‘ in a program and the processes or ideas the program implements, which are not copyrightable. CONTU assumed that most copyright infringements in the then-immediate future would be "simply copying," but recognized that technological advances would raise more difficult questions in determining the scope of copyright. One such question concerns "reverse engineering" of copyrighted programs, especially when it involves translation of object code into higher-level languages. This process is often referred to as “decompilation” or "recompilation." Discussion of reverse engineering and decompilation/recompilation brings together a number of copyright issues, including: whether it should be a copyright infringement to read/study a copyrighted digital work in order to extract noncopyrightable subject matter; the extent to which fair use applies to unpublished works; whether the combination of copyright and trade secret laws should be used to achieve protection for noncopyrightable subject matter (ideas, processes, etc.) in copyrighted programs.

As software technologies and markets evolved and grew, so did the controversy concerning appropriate protection for computer programs, computer processes (implemented in software), and algorithms. Since 1981, there have been increasing numbers of patent applications and patents granted for software-related inventions. Over the past decade, patents have been issued for software-related inventions such as linear-programming algorithms, spell-checking routines, logic-ordering operations for spreadsheet programs, brokerage cash-management systems, and bank college-savings systems. Patent litigation involving software-related inventions and controversies concerning patents for algorithms have become highly visible. These causes of action and invention-specific controversies have focused attention on the appropriateness of patent protection for software-related inventions and algorithms, which present significant problems for patent-system administration. These problems include the incomplete stock of prior art available to patent examiners in evaluating patent applications for processes involving software and algorithms, and the long timelag between patent application and issuance, compared to fast-moving software life cycles. Moreover, some members of the software and legal communities believe that software-related patents will tend to stifle, rather than encourage, technological progress.

Copyright and patent lawsuits have continued to test and explore the boundaries of the current laws. An incomplete stock of prior art can present significant problems for patent-system administration.

Looking at the scope of current legal interpretations and at possible uncertainties in these laws, some have proposed that modifications to existing structures, or the development of sui generis protections are preferable to forcing software to fit models more suitable to other types of works and are questions as to whether this process of accommodadiscoveries. However, the majority of legal experts and firms in the industry takes the position that existing structures like copyright and/or patent are adequate to deal with software, that the case law as a whole is evolving appropriately, and that sui generis approaches risk obsolescence as the technology changes and lack an established treaty structure providing international protection (e.g., the Berne Convention provides reciprocal copyright protection in over 75 countries). Thus, their tendency is to try to find some way to accommodate specific aspects of software-like protection of user interfaces &mdash; within existing structures, particularly copyright. In OTA’s view, despite the advantages, there tion can (or should) &mdash; continue indefinitely. With respect to software, there may be a point where it becomes preferable to complement or substitute for the existing structures, rather than extend the scope of copyright to fit certain aspects of software &mdash; perhaps, cumulatively, at the expense of other types of works. In continuing to assess the intellectual property bargain, Congress may conclude that the “balance” for software differs somewhat from that for other copyrighted works.

The stakeholders in the software debate can be categorized in many ways &mdash; software creators, software users, large and small commercial software developers, computer hardware manufacturers, educators, students, academic and other software and computer science researchers, to name just a few. Sometimes issues in debate are characterized as conflicts between software producers and consumers, between large and small firms, between major firms and their smaller competitors, between commercial and academic/nonprofit software developers and researchers, or between industry and the general public. Although these characterizations can be helpful in understanding specific issues and positions, one must be cautious about overgeneralizing: for example, some aspects of the controversy over software-related patents are characterized along the lines "large firm versus small developer." While it is true that large firms, on average, are more likely to have greater financial and legal resources and more expertise dealing with the patent system, licensing, and litigation, some small firms and entrepreneurs are advocates of patents for software-related inventions and find them extremely advantageous, particularly in attracting investments and in dealing with large competitors. OTA has found that the most general line of demarcation across stakeholders separates those who perceive significant current financial advantages under the status quo and/or who are relatively confident that their legal and financial resources are adequate to deal successfully with any legal uncertainties or litigation, from those who do not perceive significant financial advantages under the status quo (compared to possible changes or modifications) and/or feel less well-equipped to deal with legal uncertainties or litigation.

Some early copyright lawsuits raised issues regarding how far the scope of copyright extends beyond the literal written expression &mdash; the program code &mdash; to the program’s "design," to the logic underlying a program, and to the program’s command structure and interfaces. At stake in these decisions was the extent to which copyright (in concert with trade secret law) should be interpreted to give protection to the functionality of the program, as opposed to the program code. Software-related patent suits are also ongoing. This litigation and the recent publicity given to some patents for algorithms have stimulated debate over whether computer processes and algorithms should be patentable at all, or whether they are different enough from other areas of technology that special limitations should apply. Although questions pertaining to patent-system administration are extremely important, the long-term question of whether patent (or patentlike) protection for computer processes and/or algorithms is socially desirable is separate from the related question of how well current U.S. Patent and Trademark Office (PTO) procedures are working. The judicial system, along with PTO and the Copyright Office, participates in the process of defining the bounds of software protection. The courts help determine requirements for &mdash; and scope of &mdash; protection under the patent and copyright systems by addressing issues in the course of litigation, whether between parties in the private sector or between the respective government agency and applicants. Given the rapid advancement of the computer sciences, the courts face enormous challenges in resolving the issues raised by the changing technology adequately and in a timely fashion, so as to properly serve the needs of both the industry and society at large.

The problem confronted by the judiciary is twofold. In addressing computer and software issues, courts must deal with technology that is highly complex; the court must find a means to understand extremely technical concepts in order to decide legal issues fairly. In addition, the generally overworked judicial system, with its crowded docket, must render decisions on a technology that often advances faster than such decisions can be reached. These two difficulties raise questions about the courts’ current capabilities to address the issues presented by the software industry.