Transcript Document

Copyright VII:
Copyright & Computer Software
Class 9 Notes
Law 507 | Intellectual Property | Spring 2004
Professor Wagner
Copyright © R. Polk Wagner
Last updated: 7/21/15 9:52 tt
Today’s Agenda
1. Copyright & Computer Software
a) Infringement
b) Fair use
c) Reverse engineering
2
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
o What scope of protection does this afford?
3
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?
4
Nonliteral Elements
5
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?
6
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”?
o What is special about “methods of operation”?
• What is distinct about the concurrence’s approach?
(Do you agree?)
• What is the ‘bottom line’ from Lotus?
7
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?
o Do you agree with the ‘market analysis’ factor?
o (Can you reconcile it with the Texaco case?)
8
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”
9
Reverse Engineering
Sega v Accolade (9th Cir. 1992)
• Why does the court decide that reverse engineering is
fair use?
o Purpose of the use
o Effect on the market
o Nature of the work
• Should reverse engineering be fair use as a matter of
law?
o Why would we want to enforce interoperability?
o Why NOT allow, e.g., Sega, to control the market for
complementary products?
– In what cases might you be concerned about this?
10
Next Class
Copyright 8
Class Exercise
11