Intellectual Property Issues in Software (1991) / Chapter Skim
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4 A Closer Look At Current Issues
4 A Closer Look At Current Issues
Pages 59-80
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From page 59... ...
Because so many questions are unresolved, according to Francis Fisher, adviser to the Harvard Law School's Educational Technology Group, the software industry often cannot predict how intellectual property law applies to specific types of behavior shown by firms in the marketplace, to concerns about specific elements of software, or industry-wide issues, such as compatibility and interoperability. As a result, Fisher said, developers are forced to "gamble on unpredictable judicial interpretation." While the hope is that decisions in pending litigation and in cases yet to come will eventually yield predictable guides, another outcome might be inconsistent decisions, which could generate in their after 59
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From page 60... ...
Statistical measures show, he said, that the software industry is an increasingly important segment of the U.S. economy, contributing as a "wealth producer and as a trade-balance enhancer." "Industry-wide in the United States," Figueroa added, "the copyright system has worked well, inspiring the authorship of original programs" and engendering "head-on competition." Yet another perspective suggests it is precisely because of the industry strong performance, as well as because of the growing utility and value of software, that today's legal issues are regarded with urgency by many.
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From page 61... ...
Without adequate direction on the scope, durability, and application of patent and copyright protections, firms may operate on the presumption that their products and innovations are vulnerable to theft by a competitor. The tendency may be to rely on trade secrets, and the result, warned Esther Dyson, will be a "world of stagnation.
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From page 62... ...
For example, copyright attorneys can argue cogently that disputes over the ownership of graphical displays and the sequencing of commands-that is, the look and feel of user interfaces-should be resolved in the copyright arena because the issues center on creative expression. Objecting to the subjectivity of copyright concepts, such as "look and feel" and "structure, sequence, and organization," patent attorneys argue just as persuasively that the issues can be addressed more concretely by assessing the novelty and nonobviousness of useful processes incorporated into interfaces.
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From page 63... ...
Chisum said these can constitute a fifth problem, "arguably groundless suits, in some instances financed either by attorneys on a contingency-fee basis or by simply going out and openly raising money from investors to speculate on the outcome of a patent suit against a major company." Completing his list of shortcomings, Chisum noted that patent enforcement is country specific, a problem for companies selling products in international markets. Not only must firms seek patents in each nation where they sell their product, but they also must conform to procedures and requirements that vary among countries.
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From page 64... ...
Eventually, claims Brian Kahin, the rapid rate of innovation in the software industry will be slowed to conform with the pace of the patent review and approval process. More worrisome to Kahin and others are the combined effects of the approval of overly broad claims and the scope of patent protection.
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From page 65... ...
"The sense that I have now," Kapor said, acknowledging opinions to the contrary, "is that we face, potentially, some disasters from inappropriate software patents." If the software industry's "greenhouse effect is real," he continued, "then we have a very, very, very serious problem, disrupting the activities of large and small companies. [Dloing nothing and letting matters work themselves out in the courts seem to be unwise." At this stage, according to Chisum, only a few general trends that have unfolded under the relatively recent influence of software-related patents are discernible.
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From page 66... ...
"Although cross-licensing allows efficient, competitive exploitation of patents in industries where there are relatively few firms of roughly similar size," he has written, "cross-licensing will not work for the many thousands of small firms and tens of thousands of individuals in the software industry, because these small players have little or nothing to bring to the table. The vision of cross-licensing as a solution to the problem of software patents implicitly assumes a whole-sale shakeout and restructuring of the industry" (Kahin, 1989, pp.
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From page 67... ...
In addition, Aion's Harry Reinstein pointed out that once users have selected a computer operating system or a database management system, they are, by analogy, committing themselves to one artistic genre, a specific user interface. A parallel situation in book buying was hypothesized by Reinstein.
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From page 68... ...
In his second category, Reinstein places interfaces that are "clearly discernible through normal use," a characterization most relevant to user interfaces. This is a determination for the industry to make, he said, but if there is "general agreement" that a user interface, particularly its appearance, fits in this category, then it should be available for others to use or emu
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From page 69... ...
"Declarations or waivers of proprietary interest in an external interface or language," the proposed guidelines recommend, "should be made specifically and separately, and on a timely basis." Among the prow lems that would be eliminated with industry-wide adherence to this general rule would be disputes that arise when claims of ownership are delayed and, in the interim, firms presume that use is condoned. Esther Dyson, while stressing that protection should be accorded only to software elements that meet "high standards of originality," also endorsed immediate declaration of ownership rights.
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From page 70... ...
This high level of activity is symptomatic of snowballing consumer demand not only for compatibility of information-related equipment, but also for interoperability of software, allowing independent, perhaps geographically isolated applications to work cooperatively. Unsatisfied with the computer sector's progress toward these ideals, groups of users are nudging vendors toward standardization sometimes forcefully.
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From page 71... ...
In turn, compatibility fosters the growth of computer networks that, at the beckoning of the user, can integrate applications unhampered by worries about which vendors made the various software elements needed to solve a specific problem and whether the necessary elements can work together. From the vantage point of individual software products, compatibility greatly increases value because of so-called network externalities the benefits that accrue to being part of a larger system.
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From page 72... ...
In other words, standards are like a foundation upon which innovation can build. "What you want to do," said Scott Davis, senior consulting engineer at the Digital Equipment Corp., "is build on what somebody else has built and not reinvent what was on the bottom." But variety also has positive attributes that can be erased by standardization.
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From page 73... ...
program could have been independently created, however, without violence to defendant's compatibility objective." The court ruled that Uniden did violate lohnson's copyright, but the decision suggests that copying is permissible when it is the "only and essential means of creating" compatible software. "The issue of whether the merger-of-ideas-and-expression defense should prevail in cases involving the need for compatibility is an important one," Besen said, "especially for software." Not everyone agrees, however, that software compatibility is an overriding need, dismissing this claim as a guise for abetting widespread copying of successful products.
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From page 74... ...
ince copyright protection is broadest where the expression is most arbitrary, useful innovations may go unprotected while arbitrary choices of user interface, for instance, may be held to be protected and may generate large rents if they become de facto market standards. In the case of traditional creative works, such as novels, protection of an arbitrary creation does not constrain later innovators.
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From page 75... ...
Because of the presumed unavailability of patent protection for software, say others, the court was forced to rely on copyright law to address a matter of software functionality-"structure, sequence, and organization"- that is more appropriately an issue for patent law. Meanwhile, as the number of software-related patents mounts, there are fears that broad ideas, rather than useful innovations or embodiments of ideas, are being granted monopoly-like protection.
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From page 76... ...
As part of its "data rights" requirement, the federal government generally requires software vendors to relinquish the source code along with the products they sell to the government. Unconvinced that, in using the source code for its own purposes, the government would not jeopardize their trade secrets, many companies have refrained from doing business with federal agencies, according to Anita Tones of the University of Virginia, who was one of the founders of a small software firm that made such a decision.
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From page 77... ...
"Copyright law can magnify the ensuing difficulties because it is a field in which innovation occurs through sequential and cumulative improvements, and every researcher making use of another researcher's prior art can expose himself to potential liability for infringement or at least to litigation. absent explicit authorization for use." Others at the forum questioned whether rigid restrictions on the distribution of source code were inimical to copyright law's fair use doctrine, which permits copying and, perhaps, reverse compilation for research and other noncommercial purposes.
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From page 78... ...
Thus, the program creator has his lead time erased, his price undercut, and his market reduced for the very thing he created." According to Schneider, also of IBM, reverse compilation and subsequent changes in code, data structure, or other components can yield a program that, although the product of illegal copying, bears little, if any, provable resemblance to the original. If the designers and programmers of the original work find it difficult to determine whether a program is a copy, as Schneider maintained is often the case, then judges, who are not schooled in the technology, may have an especially hard time assessing whether a program is a derivative work and, therefore, infringes on the original.
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From page 79... ...
Even if the existing framework of intellectual property law is eventually deemed satisfactory, clarification of the scope and applicability of both patent and copyright law was described by forum participants as a critical need. "What we are looking for," said John Shoch, "is a consistent and unified way to deal with the issues of software and intellectual property." Because such a holistic perspective, one that provides a comprehensible set of guidelines for investors and software developers, does not now exist, more litigation is a prospect for the software industry.
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From page 80... ...
There has to be some way of recognizing the economic value and importance of existing standards, conventions, and user interface models, and yet be able to build on it at a reasonable cost. Robert Spinrad, Director, Corporate Technology, Xerox Corp
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