cally covers a work of software, as well as derivative works, such as translations of the software to a new language or ports to a new platform,” he explains.

“People often misunderstand the difference between copyright and patents in the context of software,” says Klemens. “Copyright is not just about a single literal string of code—the underlying concepts bleed in. If you have a character that looks and talks like Darth Vader, but you call him Stanley, then you could still be infringing copyright.” In much the

ware be protected by copyright alone? Well, as it happens, we’ve tried the just-copy-right-all-software approach, and it turns out it didn’t work all that well.

 

When is a Software App like a Poem? “Look at Whelan v. Jaslow,” says Professor Hollaar, speaking of the 1986 copyright case that illustrates why he thinks copyright is not an ideal solution for software. “The two par-ties had worked together, and then there was a falling out.” Jaslow then went to market with software for dental labs that did essentially the

many of the briefs in the Bilski case urge
the court to do some thinking about whether
mental processes count as inventions.

same way, copyright law could cover software code even if it has been “refactored, translated, and otherwise modified.”

Why copyright rather than patent? “Independent invention is not a valid defense against claims of patent infringement, while it is a valid defense against claims of copyright infringement,” says Klemens. “Copyright gives an author the right to sue certain imitators; patent gives an author the right to sue anybody whose work matches the original. That means that you could be doing your own work, writing code using your own know-how, and still be sued for patent infringement.”

According to Klemens, “All those stories about companies that got hit with patent infringement suits over their websites just wouldn’t be possible under copyright law. Nor do they occur in other patent-eligible fields like EE. They are purely an artifact of the software patent.”

same thing as software developed by the partnership. But, according to Hollaar, “the code produced was dramatically different, for different operating systems.”

But the 3rd U.S. Circuit Court of Appeals determined that Jaslow had indeed infringed the copyright. According to their findings, “One can violate the copyright of a play or book by copying its plot or plot devices. By analogy…the copyrights of computer programs can be infringed even absent copying of the literal elements of the program.” Once you move past unauthorized copying of written text, how do you decide what is legal under copyright? The ruling goes on to say, “Copyrights do not protect ideas—only expressions of ideas.”

But the line between an idea and the expression of an idea proved messy to adjudicate. Two years later, the 2nd U.S. Circuit Court of Appeals’ ruling in Computer Associates International. v. Altai objected to the Whelan decision, saying, “…its stan-