Table of Contents:

Introduction to the online version


Preface to the printed version

Copyright Overview

Software Copyright

- History

- Copyrights or Patents?

- Object Code

- RAM Copies

- Beyond Mere Copying

   - Abstraction, Filtration, Comparison

   - Methods of Operation

   - Applying The AFC Test

- Reverse Engineering

- Other Issues

   - New Software from Old

- Summary

Digital Copyright

Patent Overview

Software Patents

Full treatise table of contents

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Chapter 2: Copyright of Computer Programs

II.B. Object Code

Clearly the source code for a computer program, to the extent that it is original expression, is protectable by copyright. But does that also protect the object code that actually runs on the computer? Object code, especially when stored in ROM, might be regarded as just part of a machine, not protectable by copyright.

II.B.1. Williams Electronics v. Artic International

In Williams Electronics v. Artic International, {FN24: 685 F.2d 870, 215 USPQ 405 (3d Cir. 1982)} the Third Circuit addressed this question in the context of a video game controlled by a computer program in ROM:

   Defendant argues that the basic question presented is whether the ROMs, which it views as part of a machine, can be considered a “copy” of a copyrighted work within the meaning of the Copyright Act. Defendant argues that a copyright for a computer program is not infringed when the program is loaded into electronic memory devices (ROMs) and used to control the activity of machines. That use, it claims, is a utilitarian one not within the scope of the Copyright Act. We have already rejected defendant’s similar argument in the context of the copyrights for the audiovisual works. Defendant makes the further point that when the issue is the copyright on a computer program, a distinction must be drawn between the “source code” version of a computer program, which it would hold can be afforded copyright protection, and the “object code” stage, which it contends cannot be so protected. Its theory is that a “copy” must be intelligible to human beings and must be intended as medium of communication to human beings.

   The answer to defendant’s contention is in the words of the statute itself. A “copy” is defined to include a material object in which a work is fixed “by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device .” By this broad language, Congress opted for an expansive interpretation of the terms “fixation” and “copy” which encompass technological advances such as those represented by the electronic devices in this case. We reject any contention that this broad language should nonetheless be interpreted in a manner which would severely limit the copyrightability of computer programs which Congress clearly intended to protect. We cannot accept defendant’s suggestion that would afford an unlimited loophole by which infringement of a computer program is limited to copying of the computer program text but not to duplication of a computer program fixed on a silicon chip. {FN25: 685 F.2d at 876-877, 215 USPQ at 410-411 (citations omitted)}

II.B.2. Apple v. Franklin

The Third Circuit expanded on this in Apple v. Franklin. {FN26: 714 F.2d 1240, 219 USPQ 113 (3d Cir. 1983)} Franklin Computer was producing a clone of the Apple II computer and had copied both the Apple ROM and a number of computer programs from Apple. It argued that it could not produce a clone of the Apple II without copying the programs, although Apple introduced evidence that Franklin could have rewritten the programs and that there were in existence operating systems written by third parties that were compatible with the Apple II.

But Franklin’s main contention was that the Apple operating system programs were not protectable under copyright law:

   Franklin argues that an operating system program is either a “process,” “system,” or “method of operation” and hence uncopyrightable. Franklin correctly notes that underlying section 102(b) and many of the statements for which Baker v. Selden is cited is the distinction which must be made between property subject to the patent law, which protects discoveries, and that subject to copyright law, which protects the writings describing such discoveries. However, Franklin’s argument misapplies that distinction in this case. Apple does not seek to copyright the method which instructs the computer to perform its operating functions but only the instructions themselves. The method would be protected, if at all, by the patent law, an issue as yet unresolved. {FN27: 714 F.2d at 1250-1251, 219 USPQ at 122 (citations omitted)}

The question of the patentability of computer programs has subsequently been resolved. Methods that are truly novel can be protected by patent provided they produce a useful result. Franklin also contented that the software in question was not protectable under copyright because it was an operating system and not an applications program.

   Franklin’s attack on operating system programs as “methods” or “processes” seems inconsistent with its concession that application programs are an appropriate subject of copyright. Both types of programs instruct the computer to do something. Therefore, it should make no difference for purposes of section 102(b) whether these instructions tell the computer to help prepare an income tax return (the task of an application program) or to translate a high level language program from source code into its binary language object code form (the task of an operating system program such as “Applesoft”). Since it is only the instructions which are protected, a “process” is no more involved because the instructions in an operating system program may be used to activate the operation of the computer than it would be if instructions were written in ordinary English in a manual which described the necessary steps to activate an intricate complicated machine. There is, therefore, no reason to afford any less copyright protection to the instructions in an operating system program than to the instructions in an application program. {FN28: 714 F.2d at 1251, 219 USPQ at 122}

In the alternative, Franklin contended that the Apple operating system could not be copyrighted because it was utilitarian.

This argument stems from the following dictum in Baker v. Selden:

The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.

   We cannot accept the expansive reading given to this language by some courts.

   Although a literal construction of this language could support Franklin’s reading that precludes copyrightability if the copyright work is put to a utilitarian use, that interpretation has been rejected by a later Supreme Court decision. In Mazer v. Stein, the Court stated: “We find nothing in the copyright statute to support the argument that the intended use or use in industry of an article eligible for copyright bars or invalidates its registration. We do not read such a limitation into the copyright law.” The CONTU majority also rejected the expansive view some courts have given Baker v. Selden, and stated, “That the words of a program are used ultimately in the implementation of a process should in no way affect their copyrightability.” It referred to “copyright practice past and present, which recognizes copyright protection for a work of authorship regardless of the uses to which it may be put.” The Commission continued: “The copyright status of the written rules for a game or a system for the operation of a machine is unaffected by the fact that those rules direct the actions of those who play the game or carry out the process.” (emphasis added). As we previously noted, we can consider the CONTU Report as accepted by Congress since Congress wrote into the law the majority’s recommendations almost verbatim.

   Perhaps the most convincing item leading us to reject Franklin’s argument is that the statutory definition of a computer program as a set of instructions to be used in a computer in order to bring about a certain result makes no distinction between application programs and operating programs. Franklin can point to no decision which adopts the distinction it seeks to make. {FN29: 714 F.2d at 1251-1252, 219 USPQ at 122-123 (citations omitted)}

Finally, Franklin contended that operating systems were more like ideas than expression, because they could be expressed in only limited number of ways.

   Many of the courts which have sought to draw the line between an idea and expression have found difficulty in articulating where it falls. We believe that in the context before us, a program for an operating system, the line must be a pragmatic one, which also keeps in consideration “the preservation of the balance between competition and protection reflected in the patent and copyright laws”. “Unlike a patent, a copyright protects originality rather than novelty or invention.” In that opinion, we quoted approvingly the following passage from Dymow v. Bolton:

Just as a patent affords protection only to the means of reducing an inventive idea to practice, so the copyright law protects the means of expressing an idea; and it is as near the whole truth as generalization can usually reach that, if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist.

   We adopt the suggestion in the above language and thus focus on whether the idea is capable of various modes of expression. If other programs can be written or created which perform the same function as an Apple’s operating system program, then that program is an expression of the idea and hence copyrightable. In essence, this inquiry is no different than that made to determine whether the expression and idea have merged, which has been stated to occur where there are no or few other ways of expressing a particular idea. . . .

   Franklin claims that whether or not the programs can be rewritten, there are a limited “number of ways to arrange operating systems to enable a computer to run the vast body of Apple-compatible software,”. This claim has no pertinence to either the idea/expression dichotomy or merger. The idea which may merge with the expression, thus making the copyright unavailable, is the idea which is the subject of the expression. The idea of one of the operating system programs is, for example, how to translate source code into object code. If other methods of expressing that idea are not foreclosed as a practical matter, then there is no merger. Franklin may wish to achieve total compatibility with independently developed application programs written for the Apple II, but that is a commercial and competitive objective which does not enter into the somewhat metaphysical issue of whether particular ideas and expressions have merged. {FN30: 714 F.2d at 1253, 219 USPQ at 124 (citations omitted)}

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