Academic journal article Harvard Journal of Law & Technology

Computer Software as Copyrightable Subject Matter: Oracle V. Google, Legislative Intent, and the Scope of Rights in Digital Works

Academic journal article Harvard Journal of Law & Technology

Computer Software as Copyrightable Subject Matter: Oracle V. Google, Legislative Intent, and the Scope of Rights in Digital Works

Article excerpt

TABLE OF CONTENTS    I. INTRODUCTION                                               639  II. COPYRIGHT LAW AND COMPUTER SOFTWARE                        641      A. CONTU and the Protection of Software via Copyright      641      B. Functionality and Expressiveness Can Coexist            644 III. WHAT COPYRIGHT PROTECTION FOR COMPUTER SOFTWARE MEANS      646      A. Defining and Protecting Software's Constituent Parts    646      B. Non-Literal Similarity and Computer Software            649  IV. CONCLUSION                                                 651 

I. INTRODUCTION

It was not a foregone conclusion that Congress would choose to make computer software copyrightable. In the lengthy period of study preceding the 1976 Copyright Act, as well as afterward, some scholars advocated sui generis intellectual property protection for the digital code that would run certain hardware devices. (1) And even the commission that Congress convened to study the issue split in its recommendation. (2)

But when Congress made clear that computer programs would, in fact, be copyrightable, it effectively imported several centuries' worth of well-studied (if often misunderstood) legal doctrines to bear on the questions that would inevitably follow from its decision to categorize software as a "literary work," protectable like any other. Sorting out the proper application of these copyright doctrines--to operating systems, video displays, nested hierarchies embedded in functional menus, and other elements of software--has not always been straightforward. (3) But the essential, threshold proposition stands: by bringing software into the world of copyright, Congress plainly did not mean to abrogate longstanding copyright principles; it meant to subject software to them.

Are non-literal elements of computer software--for example, its "structure, sequence, and organization" (4)--protectable in their own right, separate and apart from the literal code? The answer is to be found in pre-existing principles of copyright protection: because the non-literal elements of "literary works" had, at the time, long been understood to be protectable, and because Congress chose to classify software as a "literary work," the non-literal elements of software are indeed protectable. There is no indication in the text or history of the Copyright Act to suggest otherwise. And it is no answer to say that computer software should be treated differently--with a thinner scope of protection in this and other respects--because it is "functional." Congress was well aware that computer software is inherently functional in respects that other literary works are not. Yet it still made computer software copyrightable.

It seems to me that Professor Menell, in his valuable contribution to this volume, implicitly embraces the view that Congress meant for the protection afforded computer software to be different from the protection afforded other works, because computer software is functional. From that premise, he argues that the Federal Circuit in Oracle v. Google erred at every turn. But the premise is, I think, mistaken. And to the extent that critics of Oracle v. Google base their complaints on the notion that the functional nature of software should yield a meaningfully narrower scope of protection from that afforded other works, it is incumbent on such critics to articulate precisely where Congress evinced that intention. As the Register of Copyrights in the era when many questions of first impression concerning the scope of digital rights initially presented themselves, I am not aware of any evidence that Congress ever did so.

II. COPYRIGHT LAW AND COMPUTER SOFTWARE

A. CONTU and the Protection of Software via Copyright

In 1980, as the world sat on the brink of the digital age, Congress amended the Copyright Act to provide computer programs the same copyright protection as all other literary works. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.