An Epitaph for Traditional Copyright Protection of Network Features of Computer Software
| Date | 01 September 1998 |
| Published date | 01 September 1998 |
| Author | Peter S. Menell |
| DOI | 10.1177/0003603X9804303-404 |
| Subject Matter | Article |
The Antitrust Bulletin/Fall-Winte r 1998
An epitaph for traditional
copyright protection
of
network
features
of
computer software
BY
PETER
S.
MENELL
*
651
Effective control of interface specifications and other network
features
of
modern computer technologies has been the key to
market dominance in the information and computer age. It is not
surprising, therefore, that intellectual property protection for net-
work features
of
computer programs has been a central battle-
ground in the competitive struggle. Just a decade ago, copyright
law was emerging as a potent mode of protection for network fea-
tures
of
computer
software. In 1983, the
Third
Circuit com-
mented, in one
of
the first major cases regarding the protection
of
operating system software for microcomputers, that achieving
"total
compatibility with independently developed application
programs
...
is a commercial and competitive objective which
does not enter into the somewhat metaphysical issue of whether
*Professor of Law and Co-Director, Berkeley Center for Law &
Technology,
University
of California at
Berkeley
School
of
Law.
AUTHOR'S NOTE: Iwould like to thank Mark Lemley
and
Howard Shelan-
ski
for
their input on this project.
C 1998by
Federal
Legal
PublicatioDs,
Ioc.
652 The antitrust bulletin
particular
ideas
and
expressions
have
merged."! A
number
of
lower
courts
around
the
country
extended
copyright
protection
to
the
screen
displays
and
other
features
of
computer
programs.! In 1987,
the
Third
Circuit
pronounced
atest
for
determining
the
scope
of
copyright
protection
for
computer
programs
that
potentially
afforded
broad
protection
under
copyright law
for
the
network
fea-
tures
of
computer
systems.! Afew
other
courts,
most
notably the
lower
court
in the
Lotus
litigation,' followed this
general
approach
in
determining
the
scope
of
protection
for
user
interfaces.
Mean-
while, advocates
for
some
of
the largest
computer
companies
were
advancing
the view that
copyright
should
provide
even
broader
pro-
tection
for
network
and
other functional features
of
computer
soft-
ware.!
The
risks
of
developing interoperable systems
loomed
large.
The
picture
could
not
look
more
different
today.
Over
the
course
of
the
past
decade,
the
federal
courts
have
reasserted
fundamental
limitations
on
the
scope
of
copyright,
effec-
tively
excluding
network
features
from
the
domain
of
copyright
protection.
This
dramatic
turnaround
reflects
copyright's
adaptability
to
technological
change,s
the
role
of
academic
See Apple Computer v. Franklin Computer Corp., 714 F.2d 1240,
1253 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984).
2See, e.g., Broderbund Software Inc. v, Unison World, 648 F.
Supp. 1127 (N.D.Cal. 1986); Digital Communications Associates, Inc. v.
Softklone Distributing Corp., 659 F. Supp. 449 (N.D.Ga. 1987).
See Whelan Associates, Inc. v, Jaslow Dental Laboratory, Inc.,
797 F.2d 1222 (3d Cir. 1986),
cerro
denied, 479 U.S. 1031 (1987).
4'
See Lotus Development Corp. v. Paperback Software Int'l, 740 F.
Supp. 37 (1990); Lotus Development Corp. V. Borland Int'I, 799 F. Supp.
203 (1992).
See Goldberg &Burleigh, Copyright Protection
for
Computer
Programs: Is the Sky Falling?, 17 AIPLA Q.J. 294 (1989); Clapes,
Lynch, &Steinberg, Silicon Epics and Binary Bards: Determining the
Proper Scope
of
Copyright Protection for Computer Programs, 34 UCLA
L.
REv.
1493 (1987).
See P. GOLDSTEIN. COPYRIGHT'S HIGHWAY:
THE
LAW AND
LORE
OF
COPYRIGHT
FROM
GtlI'ENBERG
TO THE
CE1.:EsnAL
JUKEBOX
(1994) (illustrating
the copyright law's historic adaptabilityto the challenges of new technology).
Copyright protection 653
scholarship,'
amicus
curiae,s
and
interest
group
representatives
in
educating
the
courts
about
the
proper
interpretation
of
copyright
law,"
and
the
ability
of
the
federal
judiciary
to
correct
false
starts
7Following the early court decisions expanding the scope of copy-
right protection, Milton Wessel, the director of the Arizona State Univer-
sity Center for the Study of Law, Science and Technology, along with
professors Dennis Karjala, Pamela Samuelson, and myself, organized a
conference
of
leading intellectual property professors to address the
proper scope of copyright protection for computer software. See Wessel,
Introductory Comment on the Arizona State University LaST Frontier
Conference
on
Copyright
Protection
of
Computer
Software,
30
JURIMETRICS
J. 1 (1989). The analysis and conclusions of this conference,
contained
in a consensus statement published at that time, see
LaST
Frontier Conference Report on Copyright Protection
of
Computer Soft-
ware, id. at 15-33 [hereinafter cited as Consensus Statement], has since
been reflected in the decisions of the federal courts. In addition, intellec-
tual property professors have filed amicus curiae briefs in many of the
leading
cases. See, e.g.,
Brief
Amicus Curiae
of
Professors
Peter
S.
MeneIl and Dennis S. Karjala in Support of Respondent, Lotus Develop-
ment
Corp. v. Borland
Int'l,
Inc., U.S. Supreme Court, No. 94-2003
(October Term, 1995); Brief Amicus Curiae
of
Professors Peter S. Menell
and Dennis S. Karjala in Support of Appellant, Lotus Development Corp.
v. Borland Int'I, Inc.,
Ist
Circuit Court
of
Appeals (1993), reprinted in 10
HIGH
TECH.
L.J. 1177 (1995);
Brief
Amicus Curiae of Copyright Law
Professors in Support
of
Appellant, Lotus Development Corp. v. Borland
Int'l,
Inc., 1st Circuit Court
of
Appeals (1993), reprinted in 16
HASTINGS
COMM.
&
ENT.
L.J. 657 (1994); BriefAmicus Curiae
of
Eleven Copyright
Law
Professors in Sega Enterprises Ltd. v. Accolade, Inc., 33
JURIMETRICS
J. 147, 155 (1992). The seminal court decisions have drawn directly upon
the academic literature in developing the modem tests for copyright pro-
tection
of
computer software. See Computer Associates
Int'l
v. Altai,
Inc., 982 F.2d 693 (2d Cir. 1992); Apple Computer, Inc. v. Microsoft
Corp., 799 F. Supp. 1006 (1992),
affd
in part,
rev'd
in part, 35 F.2d
1435 (1994), cert. denied, 513 U.S. 1184 (1995).
8See, e.g., Lotus Dev. Corp. v. Borland
Int'l,
Inc., U.S. Supreme
Court, No. 94-2003 (October Term, 1995),
Brief
Amicus Curiae of Eco-
nomics Professors and Scholars, Brief Amicus Curiae of Computer Sci-
entists,
Brief
Amicus Curiae
of
American Committee for Interoperable
Systems (ACIS).
9New interest groups, such as the American Committee for Interop-
erable Systems (ACIS) (an organization of companies that develop soft-
ware
and hardware products that interoperate with computer systems
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