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-