1. Copyright in Computer Programs
Michael I. Shamos, Ph.D., J.D.
Institute for Software Research
School of Computer Science
Carnegie Mellon University
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2. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Copyrightability
Computer software is copyrightable
This was not clear in the 1976 Copyright Act (and book authors argued to Congress against it)
It was repaired by the Computer Software Copyright Amendments of 1980, which added a definition of “computer program” to the Copyright Act:
“A ‘computer program’ is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”
Then a new section made it apparent by implication that computer programs were copyrightable
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3. Computer Software Copyright
Special copyright provisions for computer programs
Making of Additional Copy by Owner of Copy.— it is not an infringement for the owner of a copy of a computer program to make … another copy or adaptation of that computer program provided: (1) such a new copy … is created as an essential step in the utilization of the computer program in conjunction with a machine and … is used in no other manner, or (2) that such new copy … is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful U.S.C. §117(a)
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4. Should Computer Software be Copyrightable?
Does the long term of copyright “promote the progress of science and useful arts” or hinder it?
Are computer programs “works of authorship”?
Isn’t it essential for programmers to use constructs created by others?
Aren’t computer programs purely functional? They control machines, so aren’t they a “method of operation” and hence uncopyrightable?
There is a constant tension between protecting expression and leaving methods of operation free of copyright
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5. Protected Forms of Software
Source code
Object code
Is it a work of authorship?
Is it a derivative work?
Code in RAM
Translations into other computer languages
Bytecode?
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6. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Functionality
The “function” of a program cannot be copyrighted. (It might be patentable.)
If the expression is “dictated” by the function, then there is no creative expression and no copyright
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7. Idea/Expression Merger
If an unprotectible idea can be expressed in only one or a very limited number of ways, then the “idea” and the “expression” of the idea “merge” and no copyright is possible
To hold otherwise would give a long monopoly on an idea or process, which should be protected, if at all, by a much shorter patent (20 years v. life + 70 years)
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8. Nichols Abstractions Test
“When a plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out…there is a point in this series of abstractions where they are no longer protected.” [since they are ideas] Nicholls v. Universal Pictures (2d Cir. 1930)
in situ = Latin for “in place”
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9. Abstraction-Filtration-Comparison
A test for infringement of computer programs
Takes into account different structures and computer languages
From Computer Associates v. Altai (2d Cir. 1992)
Abstraction: reducing the program to a set of functional processes (e.g. modules, procedures)
Filtration: eliminating unprotectible elements
Comparison: seeing if the remaining portions are substantially similar
Very difficult in practice because the jury doesn’t understand abstraction and filtration
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10. Abstraction-Filtration-Comparison
OVERALL
PURPOSE
SORTING PROGRAM
SORT
MERGE
SAVE
HIGH-LEVEL
FUNCTIONS
fillbuf
fill a buffer from a file
compare
compare two lines
mergelines
merge arrays of lines into one array
PROCEDURES,
DATA STRUCTURES
a.java
b.java
merge.java
z.java
MODULES
RAW CODE
10,000 LINES OF SOURCE CODE
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11. Abstraction-Filtration-Comparison
“A computer program may be thought of as a set of individual instructions organized into a hierarchy of modules. At a higher level of abstraction, the instructions in the lowest- level modules may be replaced conceptually by the functions of those modules. At progressively higher levels of abstraction, the functions of higher-level modules conceptually replace the implementations of those modules in terms of lower-level modules and instructions, until finally, one is left with nothing but the ultimate function of the program.... A program has structure at every level of abstraction at which it is viewed.” Computer Associates v. Altai
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12. Abstraction-Filtration-Comparison
Dissect the allegedly copied program's structure and isolate each level of abstraction contained within it.
The process begins with the code and ends with an articulation of the program's ultimate function.
Along the way, it is necessary essentially to retrace and map each of the designer's steps--in the opposite order in which they were taken during the program's creation.
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13. Abstraction-Filtration-Comparison
Eliminate unprotectible elements, such as those
Dictated by efficiency
Most succinct formula, best data structure for the task
Dictated by external factors
Programming standards
Interface specifications, e.g. and API
Problem constraints: must use a particular protocol
Drawn from the public domain
Computer Associates v. Altai
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14. Abstraction-Filtration-Comparison
“There may remain a core of protectable expression. In terms of a work's copyright value, this is the golden nugget. … At this point, the court's substantial similarity inquiry focuses on whether the defendant copied any aspect of this protected expression, as well as an assessment of the copied portion's relative importance with respect to the plaintiff's overall program. (‘To determine whether similarities result from unprotectable expression, analytic dissection of similarities may be performed. If ... all similarities in expression arise from use of common ideas, then no substantial similarity can be found.’)”
Computer Associates v. Altai
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15. Lotus v. Borland 49 F.3d 807 (1st Cir. 1995)
Lotus Development created the successful spreadsheet program Lotus (a predecessor of Excel)
1-2-3 had 50 command menus with a total of 469 commands, such as “Copy,” Print,” “Quit”
Borland created its own spreadsheet, Quattro
To provide customers with a smooth transition path from to Quattro, Borland needed to support importation of files into Quattro.
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17. Lotus v. Borland 49 F.3d 807 (1st Cir. 1995)
1-2-3 had a macro facility in which users could record sequences of menu selections
To support macros, Quattro had to understand all commands
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18. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Lotus v. Borland
Borland copied the entire Lotus command hierarchy
Borland did not have access to, and did not copy, ANY Lotus source code
Is the menu hierarchy and command set copyrightable?
It certainly contains creative expression
The District Court found that there were many alternatives to the command names (e.g. “Exit” instead of “Quit”), so there was no idea/expression merger
The District Court found that Borland infringed
Borland appealed
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19. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Lotus v. Borland
Court of Appeals did not focus on idea/expression merger, but on functionality
Is the menu hierarchy a “method of operation”?
“We think that ‘method of operation,’ refers to the means by which a person operates something … a text describing how to operate something would not extend copyright protection to the method of operation itself; other people would be free to employ that method and to describe it in their own words.”
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20. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Lotus v. Borland
“We hold that the Lotus menu command hierarchy is an uncopyrightable ‘method of operation.’ The Lotus menu command hierarchy provides the means by which users control and operate Lotus If users wish to copy material, for example, they use the ‘Copy’ command. If users wish to print material, they use the ‘Print’ command. Users must use the command terms to tell the computer what to do.”
“The Lotus menu command hierarchy does not merely explain and present Lotus ’s functional capabilities to the user; it also serves as the method by which the program is operated and controlled.”
REVERSED. Menu hierarchy not copyrightable
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21. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Lexmark Int’l, Inc. v. Static Control Components 387 F.3d 522 (6th Cir. 2004)
Lexmark makes computer printers that use toner cartridges
Static Control makes microchips used by companies who remanufacture toner cartridges
Lexmark didn’t like customers to use alternative cartridges. It used technological means to prevent it.
It had a “toner loading program” which measured the amount of toner remaining in the cartridge. The program is resident in the cartridge
The program was 55 bytes long, much shorter than this slide
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22. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Lexmark v. SCC
A much longer “Printer Engine Program” drives the printer and resides on the printer
Lexmark registered the code to both programs
Lexmark sells two types of toner cartridges:
“Prebate”: sold at a discount. User agrees to used the cartridge only once and return the used one to Lexmark
“Non-Prebate”: no discount, no contractual restriction
To enforce the Prebate agreement, the printer performs an authentication of the cartridge based on a hash value. If the hash value is incorrect, the printer will not operate
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23. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Lexmark v. SCC
SCC sells a “SMARTEK” chip which contains an identical copy of the Lexmark Toner Loading Program
The SCC SMARTEK chip executes the Lexmark authentication sequence and fools the printer into thinking that the cartridge is from Lexmark
SCC claims it is necessary for compatibility
Lexmark claims
copyright infringement
circumvention of access controls on Toner Loading Program
circumvention of access controls on Printer Engine Program
District Court found a valid copyright in the Toner Loading Program (could be programmed in multiple ways) and enjoined SCC from copying
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24. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Lexmark v. SCC
On appeal. the Sixth Circuit found that the 55-byte program was uncopyrightable
Former CMU Prof. Bruce Maggs (not at Duke) was Lexmark’s expert. He said the program could have been written 50 different ways
(1) different constants and equations could be used
(2) a lookup table could be used in lieu of equations
(3) some measure other than torque could be used to approximate toner level (e.g., the number of pages printed); or
(4) the same equations could be used in a different sequence.
SCC’s expert testified that the code was determined by external factors (e.g. the printer only downloaded 55 bytes, so the program had to fit in that space)
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25. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Lexmark v. SCC
The appeals court sided with SCC
“Dr. Maggs’ first and third suggestions—that different equations and values or a different means of measuring toner level altogether could have been used—do not appear to represent alternative means of expressing the ideas or methods of operations embodied in the Toner Loading Program; they appear to be different ideas or methods of operation altogether. Selection from among competing ideas or methods of operation generally does not result in copyright-protectable expression.”
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26. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Lexmark v. SCC
“When a work itself constitutes merely an idea, process or method of operation, or when any discernible expression is inseparable from the idea itself, or when external factors dictate the form of expression, copyright protection does not extend to the work.”
The Toner Loading program was simply lockout code dictated by the authentication constraint
Not copyrightable
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27. LAW OF COMPUTER TECHNOLOGY FALL 2015 © 2015 MICHAEL I. SHAMOS
Major Ideas
Computer software is copyrightable in many forms, including object code
Software elements that are “dictated by external factors” are not protectible by copyright
“Methods of operation” are not protectible by copyright
Abstraction-Filtration-Comparison is a test for copyright infringement particularly appropriate for computer programs
When idea and expression merge, there is no copyright
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