Computer software – proprietary legal strategies
Fisher
 
Various legal regimes available to software developer 
 

Trade Secret
Copyright
Patent
Contract
 
I do not believe software is improperly protected by patent.  I don’t think the differentiation is so clean (patent vs copyright).  But, patent law must be properly constructed.  Contract law is much worse, as it has been construed.
 
Trade Secret
 
Trade Secret is state law and thus varies but not a lot.
 
Provides protection to secrets – things that fit include- info to contents (secret formula), process (effervescent power), has been extended to ephemeral events, particularly negative ones.  Includes computer programs.
 
Requirements for protection

Information must have been “secret” initially – some courts add novelty requirement
plaintiff must have made reasonable efforts to keep it secret
the information must be commercially valuable
 
Requirements for liability

Breach of confidence

Confidential relationship
Reliance on commercial custom and tacit understandings
secret was discovered through improper means

e.g. overflights, fraudulent misrepresentations; phone taps
reverse engineering is permissible
 
Copyright law

Entitlements

Reproduction
Derivative works
First distribution
Public performance
Public display
exceptions

Fair use
Merger (ideas may not be protected – only expressions of it)
Essential or archival copying
Recounts Apple v. Franklin (CA3 1983)
                        aid had to copy Apple OS in order to run apple compatible sw
            Trips agreement extensds
            Article 10 – Source and object are protected by copyright
            Other articles make more explicit terms and exceptions
 
            Has been suggested American fair use agreement violates article 13
Dimensions of diminishing copyright protection
 
Q– does TRIPS require every country to honor every court decision?
A – imposes minimum levels of protection – not a single copyright law (still other stds country by country)
 
Why is it declining?

Copying non-literal features of programs (read a book, write another mimicking a book) How similar?

Whelan (1986 CA3) – improvement of existing work too close
Altai – really creates expansive 3 part test
                                                               i.      Abstraction (map features comparison)
                                                             ii.      Filtration (remove from map unprotectable functions)
                                                            iii.      Comparison (what is left)  if parallelism is tight – infringement
                                                           iv.      Filtration process makes it harder for copyright owners to prevail

reverse engineering for the purpose of interoperability

Sega (CA9 1992) – accolade reverse engineered code to get games to run – sega brought suit – excused as fair use – done for interoperability
menu hierarchies

mimic commands – aka Lotus/MS/borland
ineffective enforcement

Analyzed BSA numbers – he found correlation to low piracy numbers and high Gore votes
 
Patent
 

Cases asserting patents in sw

Gottschalk (1972) – can’t patent algorithm
Parker (1978) – same thing
Diamond (1981) – if embedded in a machine or chemical process whole things is protected
Federal circuit relaxation of the test
                                                               i.      Step by step

US Patent activity (2001)

12,000 sw patents
trend is up
Doctrines by tech sector

Utility – easiest
Novelty – higher hurdle
Obviousness – higher (sw is raised)
Disclosure not as high (sw is lowered)
 
Contract
 

shrink wrap license

prohibits fair use, reverse engineering etc.
click on licenses
Copyright law should win over contract – but, interpretations are muddled.
So, contract law is the really bad animal.
The real hazard is here.