of prior authors. Raw material is not
needed.
There are lots of reasons to doubt
that this vision of “creation out of
nothing” works very well, even in the
arts, the traditional domain of copyright law. 4 But whatever its merits or
defects in the arts, it seems completely
wrong-headed when it comes to software. Software solutions to practical
problems do converge, and programmers definitely draw upon prior lines
of code. Worse still, software tends to
exhibit “network effects.” Unlike my
choice of novel, my choice of word-processing program is strongly influenced, perhaps dominated, by the
question of what program other people
choose to buy. That means that even if
a programmer could find a completely
different way to write a word-processing program, this programmer has to
be able to make it read the dominant
program’s files and mimic its features
if the programmer is to attract any customers at all. This hardly sounds like
completely divergent creation.
Seeing the way software failed to fit
this Procrustean bed of copyright, many
scholars presumed the process of forcing it into place would be catastrophic.
They believed that, lacking patent’s
high standards, copyright’s monopolies would proliferate. Copyright’s
treatment of follow-on, or “derivative,”
works would impede innovation, it was
thought. The force of network effects
would allow the copyright holder of
whatever software became “the standard” to extract huge monopoly rents
and prevent competing innovation
for many years longer than the patent term. Users of programs would be
locked in, unable to shift their documents, data, or skills to a competing
program. Doom and gloom abounded
among copyright scholars, including
many who shared the premise that
software should be covered by property
rights. They simply believed that these
were the wrong property rights to use.
Copyright did indeed cause problems for software developers, though
it is difficult to judge whether they
outweighed the economic benefits
of encouraging software innovation,
production, and distribution. But
the negative effects of copyright were
minimized by a remarkably prescient
set of actions by courts and, to a much
for some time,
the u.S. court
of appeals for the
federal circuit
(the leading patent
court in the u.S.)
has seemed
to believe that
computers
can turn an
unpatentable idea
into a patentable
machine.
lesser extent Congress, so the worst
scenarios did not come to pass. Courts
interpreted the copyright over software
narrowly, so it covered little beyond
literal infringement. They developed a
complicated test to work out whether
one program infringes the details of
another program.a The details give law
students headaches, but the effects
were simple. If your software is similar
to mine merely because it performed
the same function or because I picked
the most efficient way to perform some
task or even because there was market demand for doing it that way, then
none of those similarities counted for
the purposes of infringement. Nor did
material that was taken from the public domain. The result was that while
someone who made literal copies of
Windows Vista was clearly infringing copyright, the person who made a
competing program generally would
not be.
In addition, courts interpreted copyright’s fair-use doctrine to cover something called “decompilation,” basically
taking apart someone else’s program
so you can understand and compete
with it.b As part of the process, the decompiler had to make a copy of the program. If the law were read literally, decompilation would hardly seem a fair
use. The decompiler makes a whole
copy, for a commercial purpose, of a
copyrighted work, precisely in order to
cause harm to its market by offering a
substitute good. But the courts took a
broader view. The copy was a necessary
part of the process of producing a competing product, rather than a piratical
attempt to sell a copy of the same product. This limitation on copyright provided by fair use was needed in order to
foster the innovation that copyright is
supposed to encourage.
These rulings and others like them
meant that software was protected by
copyright but also that the copyright
did not give its owner the right to prevent functional imitation and competition. Is that enough? Clearly the
network effects are real. Most of us use
Windows and Microsoft Word, and one
very big reason is because everyone else
a See, for example, Computer Assocs. Int’l, Inc. v.
Altai, Inc., 982 F.2d 693 (2d Cir. 1992).
b See, for example, Sega Enters. Ltd. v. Accolade
Inc., 977 F.2d 1510 (9th Cir. 1992).