Copyright + Computer Software

CASE: Saga Enterprise v Richards [1983]

(Defendants copied the plaintiff's object code, the question was whether copyright protection applied to object code or only to human readable source code. It was held that object code constitutes a literary work meritting copyright protection. Established comprehensive copyright protection)

CASE: Apple v Computer Edge [1983] and [1984]

(ROM chips - no copyright in software; subsequently overturned) (Whether or not computer programs in ROM chips was a literary work. Court held that ROM chips are not copyrightable, only human readable forms are copyrightable. However, this decision was reversed on appeal. This prompted legislative reform worldwide and confirmed that software in any form attracts copyrights protection and it fundamentally shaped software law worldwide.

Ireland: 1993, first explicitly recognised as literary works through the

European Communities (Legal Protection of Computer Programs) Regulations 1993

• Which implemented the EU Software Directive into Irish law

• Protection later consolidated into the Copyright and Related Acts 2000

Copyright in General

• Copyright generally lasts the author's life plus 70 years

• Copyright protections covers expression, not ideas itself

• Copyright infringement occurs when someone exercises exclusive rights without permission, although fair dealing exceptions to apply (criticism, review, education)

Copyright in Software

• Idea/expression dichotomy: division between un-protectable ideas (which anyone can use) and protectable expressions (the specific way those ideas are communicated). Copyright only protects the expression, not the idea

• Balances protecting the creator's work while allowing other to make similar programs, allowing innovation and competition

• Non-literal copying: copies the structure, sequence, organisation, design, or "look and feel" of a work without reproducing the exact code or text

CASE: Apple v Franklin (1983)

• (Both object and code in ROMS are copyrightable in the US)

• USA Court of Appeals had to decide whether object code and operating system programmes stored in ROM chips are copyrightable

• Apple copied Franklin's operating system software to create a compatible computer

• Court held that both object code and ROM were copyrightable

• Legal significance is the court rejected the argument that only human-readable source code can be copyrightable

CASE: Whelan Associates v Jaslow (1986)

• (Structure/look and feel as infringement)

• Whelan had a dental lab management program and Jaslow was a client 

• Made a program that had the same structure/look and feel as Whelan's but did not copy literal source code

• Held that it was still copyright infringement, extended copyright to not just code but also structure/look and feel.

• This decision was later criticised and superseded by the next case.

CASE: Computer Associates v Altai (1992)

• US "abstraction-filtration-comparison" test)

• Altai's program contained code substantially similar to CA's scheduling software.

• After discovering this, Altai changed the software but CA still claim copyright infringement based on non-literal elements of the program.

• Established the test, became the dominant approach for analysing software copyright infringement

• Extraction: breaking down the program to abstract level

• Filtration: Next, the court examines each of these components and filters out any elements that are not protected by copyright law. This includes ideas, facts, processes, elements that are common knowledge or in the public domain, or elements where the idea and its expression are so intertwined that there are very few ways to express it

• Comparison: comparing remaining protectable expression between the works

• Refined and narrowed the Whelan approach, provided a more balance framework that protects creative expression while allowing functional compatibility and innovation

Copyright Act 2000

S. 2: "literary work" means a work, including a computer program
• S. 37: the owner of the copyright in a work has the exclusive right to
undertake or authorise others to undertake all or any of the following acts,
namely:
(a) to copy the work;
(b) to make available to the public the work;
(c) to make an adaptation of the work or to undertake either
of the acts referred to in paragraph (a) or (b) in relation to an adaption...

Richardson v Flanders [1993]993]

• Flanders was an employee who wrote software for Richardson. 

• Later created a program for another employee

• Richardson alleged copyright infringement, even though Flanders never had access to his work

• Court rejected his claim

• Court had to address whether non-literal elements of a program are protected by copyright

• Chancery division recognised copyright protection for non-literal elements, applied the US extraction test

• Established strong protection for software functionality and user interfaces against non-literal copying

• This was later eroded from 2004 onwards

IBCOS v Barclays [1994]

• Developed agricultural accounting software. 

• Barclays joined a new employer and made a similar software, IBCOS sued for copyright infringement

• Court held that IBCOS copyright was infringed in this case

• Established that copyright infringement extends beyong literal code and applied a look and feel test

• Became a leading authority for UK software copyright cases

Cantor Fitzgerald v Tradition UK [2000]

• Cantor and Tradition were competitors in electronic broking

• Cantor alleged Tradition copied the look and feel or their screen displays

• Question was whether the visual appearance and layout of screen displays constitute literary work and can be protected by copyright

• Court of Chancery found in favour of Cantor in some points, both parties appealed various aspects of his judgment

• Court of Appeal held that screen displays can be literary work, but copyright protects expressions, not ideas or functionality

• Distinguished between protectable expression and unprotectable ideas

Compare Koger Inc and Koger (Dublin) Ltd v O’Donnell

• Landmark Irish case, decided by the High Court

• Kroger Inc and Kroger Dublin brought proceedings against 3 former employees and their new company.

• Kroger was alleging copyright infringement of fund administration software and alleging breach of confidence, conspiracy etc.

• Question was whether software was protectable under copyright

• It was a 34 day long trial and judge dismissed all claims

CASE: LB (Plastics) v Swish Products Ltd [1979]

• UK case, Court of Appeal

• Swish copied LB's industrial drawing designs

• Point was whether copying functional articles from drawings was copyright infringement

CASE: British Leyland v Armstrong Patents [1986]

• Armstrong manufactured replica exhaust pipes for British leyland vehicles without license

• House of Lords established the British Leyland's defence, balanced IP rights again consumer repair rights

CASE: Green v Broadcasting Corp of NZ [1989]

• Green created talent show format and BCNZ made a similar show

• New Zealand's appeal court had to adjudicate whether TV show formats had copyright protection

• Court held that formats are unprotectable ideas, not expressions

• Copyrights protects specific scripts or recordings, not concepts

Interoperability

Software Directive (2009/24/EC) Art. 6: 1. The authorization of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of Article 4 (a) and (b) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met: (a) these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorized to to so; (b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in subparagraph (a); and (c) these acts are confined to the parts of the original program which are necessary to achieve interoperability.

Atari, Inc. v North American Phillips Consumer Electronics Corp. 672 F.2d 607 (7th Cir, 1982)

 Issue: Whether Phillip's video game K.C. Munchkin infringed Atari's copyright in Pac-Man

• The court found copyright infringement, although there was some differences, it was substantially similar

• Significant: Established that video games could receive copyright protection and that "look and feel" could be considered in infringement analysis.

Apple Computer, Inc. v Microsoft Corp. 779 F. Supp. 133 (9th Cir, 1994)

• Issue: Whether Microsoft's Windows graphical user interface (GUI) infringed Apple's Macintosh GUI copyrights

• This case began in 1983 when Apple introduced the Lisa computer, featured the first commerical GUI. This and Mac revolutionised computer interfaces. 

• When Microsoft prepared to launch Windows 1, Apple had concerns about copyright.

• Because of this in 1985, the two companies entered into a licensing agreement and Apple allowed Microsoft to use the Windows 1 interface in present and future programs.

• However, when Microsoft released Windows 2.0, Apple believed that Microsoft exceeded the scope of the licence because it was too similar.

• In 1988, Apple sued Microsoft for copyright infringement.

• Apple later expanded its claims when Windows 3 was released.

• In the District Court, the court issued several imporant rulings. They determined that the 1985 licensing agreement was broader than Apple claimed, expanding beyond Windows 1.

• In 1992, they found that over 99% of Windows fell within the scope of the 1985 licensing agreement. For the 1%, court held it was necessary or insufficiently original to merit copyright protection.

• Apple appealed and in 1994, the court unanimously affirmed the District Court's ruling. They concluded that the similarities either arose from the licence agreement or were function necessities.

• The Court rejected Apple's "look-and-feel" argument.

• Court held that illicit copying can only be found if the works as a whole were virtually identical.

• Held that courts need to use analytic dissection rather than holistic "look-and-feel" judgements.

Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995)

• Issue: Whether a menu command hierarchy in computer software

constitutes copyrightable expression or an uncopyrightable

“method of operation” under §102(b) of the Copyright Act of 1976

(codified as amended at 17 U.S.C. §§ 101-1511)

Significance: Established crucial limits on software

copyright protection by distinguishing between

protectable creative expression and unprotectable

functional elements

- Case promotes interoperability by permitting

competitors to replicate user interfaces that users

have learned

Lotus created Lotus123 which was a highly successful spreadsheet program. 

• The program featured a specific menu command hierarchy.

• Borland developed QuatroPro, a competing spreadsheet program that had its own menu system but offered optional Lotus emulation interface (replicating Lotus's exact menu command hierarchy).

• Lotus sued Borland for copyright infringement.

• The District Court found Borland liable for copyright infringement. 

• The issue in question is whether a menu command hierarchy is a protectable expression.

• "Any idea, procedure, process, system, method of operation or concept" is excluded from copyright protection (Copyright Act of 1976)

• Decision was appeal, decision was reversed.

• Held that the menu command hierarchy was an un-copyrightable operation.

• The decision clarified that not all elements of software is copyrightable.

• User interfaces that serve as methods of operating software do not have copyright protection.

• The case affirmed Supreme Court deadlock. SC heard the case but were split 4/4.

• This left the first Circuit's decision in tact.

• Lotus v Borland has continuing relevance and remains influential for cases regarding user interfaces.

Navitaire Inc v easyJet Airline Co Ltd [2006]

• Issue: Whether "non-textual copying" (replicating software functionality and interface without copying actual code) constitutes copyright infringement. Significance: Copyright protects the program's code and structure, not its functionality or behavior. - Business logic and command interfaces are not protectable. - Reinforced that competitors can create functionally identical software through independent coding, promoting interoperability and competition.

Chancery Division of the UK High Court

• Navitaire developed an airline booking system that was used by EasyJet.

• When their relationship ended, EasyJet hired someone else to replicate the same booking system, just without copying the source code.

• Navitaire sued, claiming EasyJet copied the system, user interface, functionality, screen display and the overall "business logic".

• Court had to see whether or not it was really copying without copying the source code, and if "business logic" was protected under copyright.

• They had to look at what constitute protectable design under UK copyright.

• Chancery court held that no copyright infringement had occurred. 

• Ruled that functionality, command interfaces and business logic were not protected under copyright. 

• Ruled that understanding and replicating functionality under legitimate means was lawful.

Nova v Mazooma [2007]

Issue: Whether copyright protects game rules, gameplay mechanics, and visual sequences. Significance: Court of Appeal confirmed that copyright protects artistic works and code, not abstract game concepts, rules, or gameplay. - court distinguished between protectable expression (graphics, code) and unprotectable ideas (game mechanics) - aligned UK law with the idea/expression dichotomy, preventing monopolisation of game concepts

• UK Court of Appeal

• Nova created a coin-operated arcade game and Mazooma made a very similar game.

• Nova sued for copyright infringement, claiming Mazooma had copied their game's features, rules and visual elements.

• The court had to decide if it was copyright infringement if they copied the look-and-feel of the game without copying the code.

• Court rejected the claim and said the game's similarities were at an unprotectable level, and gameplay and rules were functional ideas, not expression.

• Landmark case in video game software protection and unprotectable functionality.

• Held that game creator's cannot monopolise rules and logic of gameplay

SAS Institute v World Programming [2012]

Issue: Whether programming language, data file formats, and functionality are copyrightable under EU Software Directive (2009/24/EC (codified version that replaced the 1991 directive)) Significance: The CJEU held that programming languages, interfaces, and functionality are not copyrightable—only source code expression is protected. - Reverse engineering for interoperability purposes is permissible. - Landmark decision that promoted software interoperability across the EU and limited copyright scope in software to actual code, not underlying ideas or functional elements.

• SAS developed the SAS system, a sophisticated software suite. 

• World Programming made the WPS, which creates similar outputs as SAS, without copying the source code

• SAS claimed they copied their output and source code, sued for copyright infringement

• Question was whether creating a program that replicates another program's functionality is copyright infringement

• Court ruled in favour of World Programming, held that ideas, principles and functionality are not protected under copyright, only the expression.

• Held that studying a program's behaviour under lawful means to replicate its functionality does not infringe copyright.

• Held that copyright cannot be used to prevent competitors from creating interoperable software.

• Established EU principles for software copyright.

• Stops companies from monopolising software functionality, and allows competitors 

• Established important EU precedent for software inoperability

Application Programming Interface (API)

An API is a set of rules, protocols, and tools that allows different software applications to communicate with each other. It's essentially a "middleman" that enables one program to use functions or data from another program.

Oracle v Google (2021)

•Issue: Whether application programming interface (API) declaring code is copyrightable and whether Google's use constituted fair use. Significance: US Supreme Court assumed without deciding that APIs are copyrightable but held Google's use was fair use. - decision protects software developers' ability to create compatible systems and prevents API copyright from stifling technological progress, though it left open whether APIs are copyrightable per se.

Still stands as one of the most significant copyright cases in the technology sector

• Google developed the Android operating system and included some of Oracle's Java API.

• Google wrote their own implementing code, but used Java's structure and operations.

• Court issued a mixed ruling.

• Court found that while Oracle could copyright specific implementing code, the overall structure was not copyrightable.

• Held that API structure was a method of operation of a system that was excluded from copyright protection.

• Court held that allowing copyright rights of API would grant Oracle monopolising rights over the software.

• Held that Google had infringed, but Google successfully argued the remaining decision.

• Concluded that Oracle owned the copyright, but Google had a fair use defence.

• In a landmark decision, the Supreme Court avoided the copyrightable question and just assumed that API is copyrightable. Instead, they focused only on fair usage, and held that Google's use of the API constituted fair use.

• Court emphasised the computer programmes have a unique position in copyright law, and applying copyright law too rigidly with APIs can limit innovation.

• This case clarified that fair use can apply robustly to functional software.

• Established the importance of interoperability and software innovation in our digital economy.

• Allows software developers to use existing APIs to make compatible softwares, as long as it is fair use.

• By ignoring the API question, the court left whether or not APIs are copyrightable or not unanswered

Floss

Free Libre and Open Source Software ➢ Refers to software whose source code is freely available to anyone to view, modify, and distribute ➢ The term combines two related movements: ➢ “Free Software” – emphasises user freedom and ethical rights to control their computing ➢ “Libre” (Spanish for “free”) – clarifies that this means “freedom” not just “no cost” ➢ “Open Source” – focuses on practical developmental benefits: collaboration, transparency and community-driven innovation