Copyright VII Class Notes: February 14, 2003 Law 507 | Intellectual Property | Spring 2003 Professor Wagner

2/14/032Law 507 | Spring 2003 Today’s Agenda 1.Copyright & Computer Software a)Infringement b)Fair use c)Reverse engineering

2/14/033Law 507 | Spring 2003 Copyright of Software 1.Basic point: software is generally copyrightable 2.Protection of Literal Elements a)Apple v Franklin (1983) 3.Protection of Nonliteral Elements a)Why is drawing the idea/expression distinction so difficult in the software context? b)Whelan test: idea = purpose of the utilitarian work oWhat scope of protection does this afford?

2/14/034Law 507 | Spring 2003 Nonliteral Elements Computer Associates v Altai (2nd Cir. 1992) What is the difference between OSCAR 3.4 and OSCAR 3.5? How was 3.5 developed? Why? Why is 3.5 even being accused of © infringement? What test does the court establish for the analysis of nonliteral infringement?

2/14/035Law 507 | Spring 2003 Nonliteral Elements

2/14/036Law 507 | Spring 2003 Nonliteral Elements: Filtration What elements are excluded from protection? 1.Consider: what is the overall analysis? 2.Why might we exclude elements related to: Efficiency External factors Public domain Are these good proxies for the idea/expression distinction?

2/14/037Law 507 | Spring 2003 Functional Elements Lotus v Borland (1st Cir. 1995) What, exactly, did Borland include in its software that was problematic? Why does Altai not apply here? Is the court right in concluding that menu structure is a “method of operation”? oWhat is special about “methods of operation”? What is distinct about the concurrence’s approach? (Do you agree?) What is the ‘bottom line’ from Lotus?

2/14/038Law 507 | Spring 2003 Fair Use of Software Lewis Galoob Toys v Nintendo (9th Cir. 1992) What does the ‘Game Genie’ do? How? In what way does the Game Genie create a copyright infringement issue? (Who is infringing? How?) Is the court right in determining that the Game Genie is fair use? oDo you agree with the ‘market analysis’ factor? o(Can you reconcile it with the Texaco case?)

2/14/039Law 507 | Spring 2003 Reverse Engineering Sega v Accolade (9th Cir. 1992) Why did Accolade not simply get a license from Sega? What did Accolade do to trigger an infringement claim? (Was any of Sega’s code used in Accolade’s games?) Why do the following arguments not work: o“Intermediate copying is not infringement”; o“Reverse engineering is only utilizing ideas in the code, not expression”

2/14/0310Law 507 | Spring 2003 Reverse Engineering Sega v Accolade (9th Cir. 1992) Why does the court decide that reverse engineering is fair use? oPurpose of the use oEffect on the market oNature of the work Should reverse engineering be fair use as a matter of law? oWhy would we want to enforce interoperability? oWhy NOT allow, e.g., Sega, to control the market for complementary products? –In what cases might you be concerned about this?

2/14/0311Law 507 | Spring 2003 Next Class Patent I Introduction to Patent Law