Intellectual Property Issues in Software (1991) / Chapter Skim
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3 Is Software a Special Case?
3 Is Software a Special Case?
Pages 43-58
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From page 43... ...
Not all legal and technical experts attending the forum, however, were as confident in the providence of the legal system. For example, Mitchell Kapor, chairman of ON Technology, suggested that software is so "fundamentally different" from works on paper, the traditional realm of copyright law, that a "first-principle reconsideration" of the law may be more appropriate than determining "how to stretch copyright." Added Pamela Samuelson, law professor at the University of Pittsburgh, confusion about the expressive and functional elements of software contributes to the blurring of boundaries between copyright law and patent law.
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From page 44... ...
A "brilliant idea" gives birth to a new product and, perhaps, even an entire industry, Xerox's Robert Spinrad explained, but its potential cannot be realized without the "pick-and-shovel engineering that turns the idea, the prototype, into a reliable, distributable, maintainable, documented, supportable product." To Kapor, design is an underappreciated element of software development, even though it is the primary determinant of a product's value. "I believe more and more of the economic fortunes of computer companies .
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From page 45... ...
In fact, software development entails going down many paths simultaneously, retracing one's steps, and starting out anew with a slightly revised objective in mind. Dan Bricklin, co-developer of VisiCalc, the first spreadsheet program for a personal computer, broke the process down into eight stages, as described in Box 3.1.
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From page 46... ...
As appropriate, create user groups and provide on-site training, telephone help lines, and informational publications. Track user feedback, correct bugs, identify incompatibilities, and begin evaluating features to include in the next product version.
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From page 47... ...
This market illustrates the problem of balance: on the one hand, overly rigid protections could undermine a slowly growing foundation of reusable components. On the other hand, without intellectual property protections, these companies could not exist.
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From page 48... ...
The popularity of Apple's Macintosh computer, for example, is attributed to a graphical user interface that mimics the desktop work environment in visual imagery, in the behavior of the file folders, trash cans, and other objects depicted on the screen, and in the interaction between the user and these objects. Indeed, a major aim of software development is to create user interfaces in which "electronic reality and actual reality completely overlap and reinforce each other," said Bruce Tognazzini, who started the human interface group at Apple Computer.
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From page 49... ...
For example, she said, the popular spreadsheet program Lotus 1-2-3 was initially viewed as a user application for performing accounting operations. But users have discovered the broader utility of the software.
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From page 50... ...
, because of "assumptions that are founded on differing views regarding the extent of intellectual property claims." SYMBIOSIS IN THE MARKET In the personal computer side of the software industry, the competitive environment has given rise to a new form of business behavior that, according to Kapor of ON Technology, should not be jeopardized by legal concerns. When Apple and then IBM disclosed the architectures of their personal computers, they provided independent software developers with the opportunity to write applications for the machines without entering into a contractual relationship with
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From page 51... ...
Points of interaction between otherwise independent components, interfaces link machine to machine, software to machine, application to application, and user to computer. As the complexity of hardware and software has grown and as the push for interoperability has gained momentum, the number of interfaces of all types has multiplied, as have questions about the appropriateness of available intellectual property protections.
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From page 52... ...
Those who produce software and hardware components that must attach to and work with complex information systems see proprietary interfaces as a barrier to market entry. Thus, even if intellectual property law provides reasonable protection for interfaces-the subject of a wide spectrum of opinion business strategies dictate whether a firm will deem an interface as open or proprietary.
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From page 53... ...
User interfaces are also emerging as the primary asset of firms that specialize in software development and of those that offer entire information systems. "Increasingly, the economic value is absolutely inseparable from that part of the program that the user directly interacts with and experiences," Kapor said.
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From page 54... ...
The sections that follow provide a brief overview of the evolution of user interfaces and discuss some of the factors that underlie innovation in this important area of software. Evolution of User Interfaces User interfaces have been called the last frontier in software design (Foley, 1987~.
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From page 55... ...
An embodiment of art, human intuition, and elements of various science and engineering disciplines, interfaces are the products of a process that stands out because of the intensiveness and complexity of the design effort required to produce what some call "aesthetic functionality." Compared with software applications alone, said Spinrad of Xerox, "there is a different kind of invention and a different kind of creativity required" to develop a user interface that complements the way people think. Interface designers, he continued, must have the skills of cognitive scientists and a "gut understanding of what you can or cannot achieve computationally." Tognazzini characterized interface designers as illusionists who, unconstrained by their medium, create their own natural laws.
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From page 56... ...
. all copyrightable expression owned by the same claimant and embodied in a computer program, or first published as a unit with a computer program, including computer screen displays, is considered a single work and should be registered on a single application form." To Kapor, this legal parsing ignores the "organicity" of the user interface, akin to describing the human senses of touch, vision, and speech without recognizing the role of the brain.
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From page 57... ...
Yet, as Dyson explained, resolving the legal ferment that surrounds software in general and user interfaces in particular requires assigning value to the elements or combination of elements spawned by creativity and superior engineering. "This," she said, "is what we want to provide incentives for." SUMMARY Is software a special case, different from other technologies in the ways it is designed, made, and used?
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From page 58... ...
firms still enjoy a commanding position in international trade. Lewis Branscomb, Director, Science, Technology and Public Policy Program, Harvard University As an attorney, I want to make it possible for him [the businessman]
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