The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent.The Copyright Act of 1976 stipulates (section 102):
(b)In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.Congress attempted to clarify the situation for computer programs (Rep. No. 473, 94th Cong., 1st Sess. 54 (1975)):
Section 102(b) is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law.and the National Commission on New Technological Uses of Copyrighted Works (CONTU), wrote in its final report (1978):
Where could a meaningful line of demarcation be drawn? Between flow chart and source code? Between source code and object code? . . . The Commission believes that none of these is appropriate. The line which must be drawn is between the expression and the idea, between the writing and the process which is described.Are you confused by this? Join the crowd. Almost everyone agrees that the literal code of a computer program is copyrightable. But beyond that, things are muddled.
The following sequence of cases shows judges struggling with the distinction between "expression" and "idea" in computer programs. As you'll see, the result is far from satisfactory.
.. we must determine whether the structure (or sequence and organization) . . . of a computer program is protectible by copyright, or whether the protection of the copyright law extends only as far as the literal computer code.The Court found:
[T]he coding process is a comparatively small part of programming . . . . The evidence in this case is that Ms. Whelan spent a tremendous amount of time studying Jaslow Labs, organizing the modules and subroutines for the Dentalab program, and working out the data arrangements, and a comparatively small amount of time actually coding the Dentalab program.The conclusion was:
We hold that ... copyright protection of computer programs may extend beyond the programs' literal code to their structure, sequence, and organization,The Court not only held that "structure, sequence, and organization" (which became known as SSO in computer copyright law) but remarked in a footnote:
We use the terms "structure," "sequence," and "organization" interchangeably when referring to computer programs, and we intend them to be synonymous in this opinion.
In the District Court opinion, the judge relied on report by Prof. Randy Davis of MIT, who was appointed as an expert to assist the Court. Davis pointed out that the SSO test does not make sense, since a program consists of both text and behavior. The code is text (static structure), but the user of the program deals with its behavior (dynamic structure) which may not be copyrightable. Thus, to analyze copyrightability in terms of "structure" is ambiguous, and to identify structure with "sequence" and "organization", as the Whelan Court had done, is fallacious.
The Second Circuit agreed, and it criticized the Whelan Court's SSO analysis as showing "a flawed understanding of a computer program's method of operation," and a "somewhat outdated appreciation of computer science."
The Court concurred with the Whelan decision that copyright can be infringed even if no literal code is copied, but it continued: "that conclusion does not end our analysis. We must determine the scope of copyright protection that extends to a computer program's non-literal structure."
In place of SSO, the Court proposed using a three-step abstraction-filtration-comparison process to gauge the similarity of two computer programs. This process first describes the two programs at various levels of abstraction; then, at each stage, filters out the elements that are not subject to copyright; finally, it compares the results. Most courts now try to follow this procedure, even though it can be complex and highly subjective.
Here are two reviews of the Altai case:
This was a complex decision in which the copyright infringement claims for the various elements of the desktop were thrown out on a variety of grounds. One important basis for the ruling was the court's finding that the appropriate standard to apply was whether the two GUI presentations were "virtually identical," whereas Apple had argued that the appropriate standard was "substantial similarity." The decision of the lower court was upheld by the 9th Circuit in 1994.
In 1990, Lotus sued Paperback Software and Mosaic Software, who had produced spreadsheets that had the same interface as 1-2-3. There was no issue here of copying code, but Lotus claimed that copying the interface itself constituted copyright infringement. Lotus won, and both companies went out of business. The following material on this decision is on reserve for the course:
Concluding, as we do, that users operate Lotus 1-2-3 by using the Lotus menu command hierarchy, and that the entire Lotus menu command hierarchy is essential to operating Lotus 1-2-3, we do not inquire further whether that method of operation could have been designed differently. The "expressive" choices of what to name the command terms and how to arrange them do not magically change the uncopyrightable menu command hierarchy into copyrightable subject matter.
Last modified: October 6 1997, 10:59 AM