Intellectual Property Law

Should copyright laws apply to protect computer software?  Since the 1960s, the answer is, yes.  And in a January 6, 2006, ruling by United States District Court Judge, Marilyn Patel of the Northern District of California, in Aharonian v. Ashcroft, the answer remains, yes. 

But is that the right answer?  If computer software is primarily a useful thing, and copyright law is not supposed to protect useful things, then why should copyright protect software?  Is it inconsistent to protect computer software by patents and by copyright law?  Or do patents and copyright law protect different aspects of computer software?

An analysis of the purposes of the two statutory schemes shows that there may be no conflict in applying both copyright law and patent law to the protection of computer software.  On the one hand, copyright law protects the written expression of the code, not the utility derived by the code.  If someone else copies that code, why shouldn?t that be copyright infringement?  However, if they independently create the same or similar code, or they write the code different enough and in a manner to achieve the same functionality, then there should not be copyright infringement.  These are basic and well-established principles of copyright law.

On the other hand, if computer software is useful, novel and non-obvious, then it should be eligible for patent protection.  Although it took longer for the courts to recognize patent protection for computer software, it is well established now.  And given that software?s worth is primarily its utility, then it is no surprise that the trend, as others have noted, is clearly towards protecting software via patents as opposed to copyrights.

But even so, copyright protection for software remains quite valuable.  One good practical reason to continue to use copyright to protect software is that copyright protection is dirt cheap and quick and easy to obtain as compared to patent protection.  Assuming your software is an original creation, all you need to do is register it with the United States Copyright Office, pay your $30 fee, and you are done.  Once registered, and assuming the owner registers the code before anyone infringes it, he or she can sue infringers and seek statutory damages (up to $30,000 for each work infringed) as well as attorney?s fees on your $30 investment.  If the infringement is willful the owner can possibly recover even more.  In contrast, an inventor can't even talk to a patent attorney for very long for $30, and patent infringement actions are notoriously expensive cases to litigate, not to mention the thousands of dollars and several years it can take to obtain a patent in the first place.   

A $30 investment that could lead to $30,000 or more in recovery seems a good investment to me.  That alone is reason to employ copyright protection for computer software.  Sure, copyright protection for software may be thin, and someone could re-write the code and achieve the same result without infringing the copyright.  Plus, if the utility of the code is valuable enough, patent protection certainly makes sense and provides much stronger protection.  But for $30, copyright protection is a no-brainer.

Does the Aharonian decision make sense?

Today's Blogger:  David Stoll