The Illustrated Story of Copyright
©
2000 by Edward Samuels
[74]
CHAPTER FOUR
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The Computer
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Probably no technology has had
a more profound effect upon copyright, upon the creative process, or, for that
matter, upon our lives, than the computer. Before getting into the intricacies
of copyright, however, it will be helpful to spend just a little time exploring
what computers are and how they work.
The real guts of most
computers is the central processing unit,
or CPU. (The underlined key phrases are illustrated in the diagram on this
page.) Basically, this central processing unit is a very fast traffic cop. It
receives information, in the form of electronic impulses, and reroutes it to
other parts of the computer. These impulses are simply electronic on/off
switches. Ultimately, all the information a computer receives, stores,
manipulates, and sends is simply electronic impulses that are either “on”—there
is an electrical charge stored in a particular place in the computer—or
“off”—the relevant location in the computer does not have an electrical charge. The CPU does its magic by handling
an amazingly large number of [75]
operations in a very short period of time—about a billion operations per
second on the most recent generation of computers.
Another important function of the computer is the simple
storage and retrieval of electronic impulses in what is called the memory unit of the computer. The memory
unit stores the electronic impulses so that they can be retrieved by the
central processing unit at a later time.
There are different types of memory in computers. Random access memory, or RAM, is basically
short-term memory that’s stored in such a way that it’s immediately accessible
to the central processing unit. In most computers, the electronic impulses in
RAM must be constantly recharged. Think of RAM as live electricity flowing
through the system. Turn off the computer, and the flow of electricity
ceases—the information stored in RAM disappears. This form of memory is very
good for information you want to access and process very quickly, but it isn’t
very good for storing a word processing document until you need it next
Thursday.
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[75] Only $1,295! This
is a picture of a complete general purpose computer, here
about twice actual size, from the cover of Scientific
American (May 1975). The computer was made by
Teledyne Systems Company from chips manufactured by National
Semiconductor Corporation. The two
largest chips, in the center, were integrated circuits containing what at the time was the
remarkable capacity of six thousand transistors each. These
two chips controlled the four slightly smaller chips devoted to arithmetic and
logic circuits, and the numerous other chips. The computer, mounted on a
ceramic wafer and with six glass-insulated conducting layers, communicated with
the outside world through 120 leads, 30 on each side. The cost of the computer
at the time was $1,295. |
For that longer-term memory, you need some form of storage unit that will reliably retain
the information well after the computer itself is turned off. One storage
device is a hard drive, which
basically records a copy of the electronic impulses on platters that spin
within the computer. Other storage devices are magnetic tapes or floppy drives,
magnetic disks or optical disks, or CD-ROMs, all of which store the information
on a separate medium that can be removed from the computer and reinserted at a
later time, or can be transferred to other computers to share the information
encoded on them.
Other parts of the computer are the arithmetic unit, which can add, subtract, multiply, divide, and
perform other advanced calculations; input
devices, such as a keyboard, a mouse, a microphone, a midi (musical interface
device), or various devices that allow the computer to recognize video images
from a television receiver or video camera or video recorder; output devices, such as a computer
monitor, a printer, or speakers; and connections to allow the computer to
communicate with other computers through direct connections or over telephone
lines. Once computers can access telephone or other long-distance lines, they
can be linked via global networks like the Internet, so that practically any
computer can access any other computer, wherever located.
At the end of this chapter,
we’ll take a look at the profound effect computers have had on a broad range of
creative works. For most of the chapter, however, we’re going to focus upon the
protection of a new form of creative work: the computer program that controls
all of the information inside a computer and makes it work its magic.
What, exactly, is a computer program? In the words of the
Copyright Act (as amended in 1980), a computer program is “a set of statements
or instructions to be used directly or indirectly in a computer in order to
bring about a certain result.” There are several different ways of categorizing
computer programs. One traditional distinction is between object code and source code. Object code is simply the
program as it’s stored in the computer, the ones and zeroes, the ons and offs
that tell the computer precisely what it’s supposed to do. This is the language
that only a computer would love. Even a sophisticated computer programmer can’t
really decipher all these ones and zeroes, and doesn’t usually write [77] programs directly in
object code. Instead, the programmer usually writes in source code, a more
abstract, or “higher,” programming language, such as Basic or C or PASCAL, and
uses a computer program, a compiler, to convert the humanly intelligible source
code into the computer intelligible object code.
A simple programming example will illustrate the
distinction. Let’s say I want to write a simple computer program that will ask
the user for two numbers, and then respond by calculating their sum. Here’s how
the program might look in an old version of Basic, a relatively straightforward
programming language that unfortunately is hardly ever used anymore.
10 Input A
20 Input B
30 Let C=A+B
40 Print “The sum of your two numbers is ”; C
Here’s what this program would accomplish on a computer
that was set up to run Basic: at lines 10 and 20, the program would stop and
wait for the user to input two numbers (that’s what the instruction “Input” is
defined to do in Basic). It would then select a portion of its memory, give the
memory locations the titles “A” and “B,” and store the two numbers in those
locations. In line 30, the computer would go to the locations labeled “A” and
“B,” take the numbers previously stored there, send them to the arithmetic unit
for addition, and store the result in a portion of memory labeled “C.” In line
40, it would print out literally the words in quotation marks, followed by the
number which is now stored in the portion of memory previously labeled “C.” On
a computer screen, the running of the program would look something like this,
with the underlined portions entered by the user:
? 12
? 23
The sum of your two numbers is 35
This Basic program is relatively easy for humans to
understand and work with, because it’s written in source code. In fact, humans
could work with this program, analyze it, and discuss it without ever entering
it into a computer. As entered into any particular computer, [78] however, it’s reduced
to computer instructions—or object code—that implement the above Basic program
on a particular type of computer.
Of course, computer programs get much more sophisticated
than our example. Programs have been written that will allow word processing,
graphic image processing, sound processing, and video processing on a
sophisticated level. The cutting edge of the technology is usually reflected in
the games. It was only in the early 1970s that the first commercial computer
video game was made available to the [79] public. That game, Pong, was basically
little more than a light blip that was moved around the screen to simulate a
Ping-Pong game. What I think of as the second generation of computer games were
games like Pac-Man, a program that could move simple imaginary characters
around a relatively stationary two-dimensional grid. We might think of the
third generation of games as the Mario Brothers type game, a still basically
two-dimensional game, but with characters that moved around with much greater
fluidity and sophistication: Mario walked across two-dimensional side-scrolling
backgrounds, and interacted with those backgrounds. The fourth generation of
games is represented by StarFox or Star Wars or Super Mario 64, in which the
background scenery constantly changes so as to simulate a three-dimensional
view of a virtual space. It’s hard to even imagine the amount of
information—the hundreds of millions of operations per second—the computer has
to process in each frame, at the rate of many frames per second, in order to
create a realistic image that “puts” the viewer into the scene displayed on the
computer monitor. The position of practically every pixel on the screen has to
be recalculated, based upon the complicated three-dimensional contours of the
“characters” and background of each scene.
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[78] Pre-pong.
[78] Pac-Man. |
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| [78] Super Mario Brothers. | [78] Super Mario 64. |
As the games and word
processing and business programs have become more and more complicated, the
investment in developing them has increased dramatically. Today, the
development of a new computer program can cost millions of dollars and hundreds
of thousands of programmer-hours. If you’re a developer who spends all that
time and energy to bring your program to market, you certainly don’t want to
have teenage kids send free copies of your latest version of MegaDoom to all
their friends over the Internet, or have business executives distribute dozens
or hundreds of copies of your latest version of MegaWord to all the employees
over the company’s network, for free. You expect to get compensated, and you
probably wouldn’t develop the software if you didn’t think you would be
compensated.
During the 1960s and 1970s, programmers began asking how
they could protect their creations in the marketplace. One method that’s met [80] with some success is
the development of physical copy protection systems. That is, you write the
program so that it won’t work unless the user types in the proper password or
serial number, or inserts a disk containing a legitimate copy of the program.
The problem with using such physical protection is that many legitimate users
are unhappy with the system. What happens if you forget the password, or if you
don’t happen to have the original program disk when you want to run the program
from your hard drive? Can you make backup copies to protect against the
possibility that something goes wrong with your initial disk? What most
software companies learned during the seventies and eighties is that legitimate
users complained strenuously about overly burdensome copy protection systems;
and so, most companies abandoned all but the most straightforward such systems.
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[80] Can computer
programs be patented?
[81] In recent years, the patent office has begun granting patents for computer programs, particularly ones that are part of methods of doing business. Some of these patents are controversial, and it remains to be seen how extensive such patent protection will be in the future. |
*Patent protection, see pp. 128 and 219.
Some companies tried trade secret law.† If you only
disclose your program to people who agree not to further disclose it, you can
legally enforce their promises not to disclose. This worked for some computer
setups, where the software supplier retained some control over the use of the
software program. But it didn’t work very well for the new desktop computers,
where copies of the software were sold to the users, and could be studied and
sometimes deciphered by them.
†Trade secret
protection, see p. 224.
As we saw in some detail in chapter 1, copyright is an
effective method of protecting creative works, [81] designed to encourage the making of such
works by granting certain exclusive rights in them. Why not bring computer
programs within the scope of copyright protection? After all, copyright has been
around for a long time, and it seems to work. It’s easy to get a copyright,
because you don’t have to go through any particular qualifying applications.
The threshold of copyrightability is pretty low. All you have to do is create
something original—that is, that you figured out yourself, and didn’t simply
copy from someone else.
There are some conceptual problems in using copyright as
the form of legal protection to cover computer programs. Under the “works of
utility” doctrine,* functional works are not the proper subject of copyright
protection. Under that doctrine, how can copyright protect a computer program,
the purpose of which is to run a machine? Computer programs are simply
different from most creative works: while copyrightable works are generally
designed for human communication, isn’t communication with a machine something
of a different order?
*Works of
utility, see p. 185.
Some commentators suggested that computer programs didn’t
fit neatly into any of the existing forms of legal protection of creative
works—patent, copyright, trade secret, or anything else. What we needed, these
commentators suggested, was some new form of protection designed specifically
to protect computer programs.
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[82] The argument
for copyright protection: the Commission majority (1978). The
cost of developing computer programs is far greater than the cost of their
duplication. Consequently, computer programs . . . are likely to be disseminated
only if: (1) The creator can recover all of
its costs plus a fair profit on the first sale of the work, thus leaving it
unconcerned about the later publication of the work; or |
[84] The argument
against copyright protection: John Hersey's dissent (1978). In the early stages of its development, the basic
ideas and methods to be contained in a computer program are set down in written
forms, and these will presumably be copyrightable with no change in the 1976
Act. But the program itself, in its mature and usable form, is a machine
control element, a mechanical device, which on Constitutional grounds and for
reasons of social policy ought not to be copyrighted. |
To cut a long story short, all of this, by now, is
actually ancient history. For the most part, we’ve opted to treat computer
programs as creative works protectable under the copyright laws. This might not
be obvious from the Copyright Act itself, since the Act does not list computer
programs as one of the eight categories of works covered by copyright. But one
of the categories of works is “literary works,” and literary works are defined
to include works “expressed in words, numbers, or other verbal or numerical
symbols or indicia.” During the congressional discussions leading up to the
1976 Copyright Act, Congress concluded that computer programs were within the
definition of “literary works,” even though computer programs clearly had
features that were unlike those of any literary works that had previously
existed. So, whether or not it seems intuitive, and whether or not the statute
seems clear, [82] computer
programs are “literary works,” and, as such, they are protected by copyright.
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[85] Another
argument against copyright protection: Office of Technology Assessment (1986). Although the copyright law adopts a uniform approach
to protected works, not all types of information-based products are the same,
nor can they be treated as if they were. A list of stock and bond prices, for
example, differs from the musical score or a motion picture, and both of these
are distinct from a computer program. In the case of stock prices, the value is
in the information itself—the number of shares traded and the daily fluctuation
in prices. The value of a musical score, in contrast, lies in the way it sounds
to an audience—the appeal of its melody, rhythm, and harmony. And computer
programs are valued for what they do—their effectiveness at performing a given
task in a computer. |
Even as Congress passed the 1976 Copyright Act, it
established the National Commission on New Technological Uses of Copyrighted
Works (CONTU) to analyze, among other things, the appropriateness of the
copyright approach. That Commission concluded that computer programs were and
should be copyrightable, and recommended a minor amendment to the Copyright Act
that Congress adopted in 1980.* The amendment created a “limitation” on the
copyrightability of computer programs by specifically allowing users to make
archival, or backup, copies of programs, and to make minor adaptations
necessary to get programs to run on their particular machines. These exceptions
would hardly have been necessary unless computer programs were otherwise
already covered by the Act. So, while the statute still does not say in so many
words that computer programs are copyrightable, the 1980 amendment, by carving
out a limited exception, implicitly confirms that they are. To be sure, there
was a well-reasoned dissent to the CONTU report, as well as periodic negative
comments by various commentators over the years. But by now it’s a done deal:
computer programs are copyrightable.
*1980
computer amendment, see p. 88.
The only remaining question is not whether computer programs should be protected by copyright, but to what extent they should be protected.
This is not an easy question, since computer programs are not obviously or
easily amenable to analysis under traditional copyright principles.
Let’s turn now to
two of the leading cases in which the courts have proven themselves able to
resolve the tough issues. We’ll look later at the ways in which Congress has
felt it necessary to change the existing laws in order to accommodate the
particular problems raised by protecting computer programs.
[83]
One of the great success
stories of the computer industry is that of Apple Computer, Inc., which
developed the Apple II, one of the first more or less user-friendly desktop
computers. The computer was assembled in 1976 by a couple of enterprising kids
in their parents’ garage using standard parts that were readily available,
designed around the new, cheap 6502 chip manufactured by Mostek. Within months,
dozens of companies were developing software to run on Apple’s new machine. The
big breakthrough for Apple came with the development of the first truly
successful spreadsheet program, VisiCalc, in 1979. In its first year, VisiCalc
was available only on the Apple; and it was so successful that it resulted in
the sale of many Apple computers to businesses and individuals who wanted or
needed to have VisiCalc.
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[83] The Apple prototype—using a Mostek 6502 microprocessor, four kilobytes of memory, and a cassette recorder for storage of programs and data—can now be viewed in the Smithsonian Institution. |
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[83] The first
commercial Apple computer, with its
own keyboard, monitor, disk drives and power supply. |
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[86] Two kids in
a garage. Woz had designed a single-board
computer around the Motorola 6800 microprocessor. While the 6800 was fairly
powerful, it was also fairly expensive at $175. In 1976, a small company called
MOS Technology announced a pin-for-pin replacement for the 6800 called the
6502. Although it performed many of the same functions as the 6800, it cost
only $25. |
Shortly after Apple introduced its computer, Franklin
Computer Corporation tried to duplicate Apple’s achievement. It designed its
computer, the Franklin Ace 100, around the same 6502 chip that Apple had used.
Franklin realized early on that it would be very difficult to compete with
Apple and other existing computer manufacturers. When first introduced, a new
computer would have virtually no software that it could run, while the existing
computer manufacturers had the advantage of hundreds of programs already up and
running. Franklin’s solution was to make its computer “Apple-compatible.” That
way, Franklin could plug into the existing software and peripherals that were
already designed to run with Apple computers. To achieve compatibility,
Franklin thought it was not enough to simply use the same computer chip that
Apple used; it also had to duplicate some of the Apple operating [84] system. That is, in
developing the software to run its machine, Franklin copied various portions of
the computer programs Apple used to run its machine.
Without yet getting to the legal arguments, Franklin’s
practical assessment may have been correct. It might be possible to write an
operating system that would make Franklin’s computer look very much like an
Apple. But unless it were precisely the same, it would be hard to guarantee
that a program that ran on an Apple would run on a Franklin. For example, a
program like VisiCalc, written to run on the Apple operating system, might be
written on the assumption that certain specific operating instructions, like
telling the printer to print a copy, or telling the monitor to move a pointer,
were controlled by instructions at particular locations in the Apple operating
system. These are known as “entry points,” the precise locations within an
operating system where specific instructions can be found. If Franklin wrote
its own operating system, then some of the critical entry points would be at
different locations. So if you tried to run VisiCalc on a Franklin, and
VisiCalc tried to make a call to the location where it expected printer
instructions, and those instructions weren’t there, then your computer would
crash.
In order to achieve Apple compatibility, Franklin simply
copied parts of Apple’s operating system. And, no surprise, Apple sued Franklin
for copyright infringement of its computer programs. Apple’s argument was
straightforward: Computer programs are copyrightable; copying and distributing
are exclusive rights of copyright; so Franklin’s copying and distributing* of
Apple’s computer programs are a copyright infringement.
*Copying and
distributing, see p. 167.
Franklin made several counterarguments. It could hardly
argue that computer programs weren’t copyrightable, since that, at least, was
clear from the 1976 Act and its legislative history. Instead, Franklin argued,
more specifically, that these
computer programs weren’t copyrightable for three somewhat overlapping reasons:
(1) they existed in [85] the
Apple computer in object code, and object code, as part of a machine, was a
“work of utility,”* and therefore not copyrightable; (2) some of the programs
were embedded in the ROM of the Apple computer, and ROM, as part of a machine,
was not copyrightable; and (3) the programs were part of the operating system,
and, as such, a functional part of the computer; as part of the “process,
system, or method of operation,Ӡ under section 102 of the Act, it was not
copyrightable. Although the district court was sympathetic to Franklin’s
arguments, the Third Circuit Court of Appeals ruled in favor of Apple on the
copyrightability issues. The programs were copyrightable even though they were
in object code, even though they were embedded in ROM, and even though they
were part of an operating system. The court held that there was no basis for
making the distinctions Franklin had urged: computer programs were
copyrightable no matter what form they might take. Franklin ultimately settled
the case for a large cash payment, undertook to develop a separate operating
system, and then proceeded to fail in the marketplace.
†Process, system, or method, see p. 188.
So what is a company like Franklin to do? It’s
theoretically entitled to make a new computer using the same chip Apple used.
But if the computer can’t be made Apple-compatible, then there will be no
software to run on the new machine, and it will have a difficult time getting
out of the starting gate. Apple thus gets an indirect benefit from a lot of
programs that are not written by Apple at all, but by third parties to run on
Apple machines. Well, the court was unsympathetic to this argument, stating
that “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 did not enter into the
consideration of whether Apple was entitled to copyright in its operating
system.
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[87] The original
Macintosh desktop, showing icons
representing folders, applications, and documents, and windows showing and
controlling open applications. |
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| [87] Microsoft Windows 3.0. |
Apple’s next breakthrough was
the development of the Macintosh computer in 1984. The Mac, as it came to be
known, represented the first major successful use of a graphical user interface
to run a desktop computer. Instead of typing in archaic lines of code that were
gibberish to the uninitiated, the idea of the Macintosh was that major computer
functions were represented by images, or icons. The user could run the computer
by simply clicking on pictures. For example, to open a particular application,
you didn’t have to type in the name of the program you wanted to run, but,
using a pointing device known as a mouse, you just moved a cursor to a picture
of the program and clicked twice. To open a file, or a work in progress, you
just double-clicked on a visual representation of the file. The images were
laid out on the screen in ways that allowed for their easy manipulation. You
could store files in folders, and folders in folders, to organize your programs
and data. You could click on “windows” that contained different groups of
programs and data, and move the images from one window to another. You could
open windows to work on them, and close them to clear them away from the screen
while you worked on something else.
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[88] The first
graphical user interface. |
One of the people who admired this new graphical way of
running computers was Bill Gates, the person who in his early twenties had
developed the DOS operating system that ran the IBM computer, as well as most
other desktop computers. In 1983, Gates’s company, Microsoft, developed the
Microsoft Interface Manager as a graphical overlay to the existing DOS
operating system. The problem was that the program didn’t work very well,
particularly when compared with the Macintosh operating system that was
introduced the following year. In 1985, Microsoft signed a licensing agreement
with Apple, under which Microsoft was [87] allowed to incorporate certain features of the Macintosh
interface into its new program. Although it took several more years to get it
right,
Windows 3.0, released in 1990, finally seemed to answer
most of the problems with earlier versions of the program. Windows 3.0 was an
immediate success, and eventually became the most successful computer program
ever written. It made the awkward DOS operating system almost manageable. It
also made Microsoft look like a monopoly, leading to one of the largest
antitrust lawsuits since the breakup of AT&T—but that’s the subject of a
book on antitrust.*
Apple, by this time regretting its licensing agreement,
claimed that the new version of Windows was not included within the earlier
arrangement, and sued Microsoft for copyright infringement. This suit, however,
was completely different from its earlier suit against Franklin. While Franklin
had clearly copied portions of Apple’s actual computer program—its operating
system—Microsoft did not copy any of the actual code from the Apple operating
system. Microsoft basically wrote a completely different computer program that
nonetheless copied the effect, or the
“feel,” of a Macintosh.
Microsoft raised several defenses, based upon some of the
basic copyright principles we’ll discuss in Part Two. It argued that what it
had taken was merely the “idea” of Apple’s graphical user interface, not any of
the actual expression,† or code. It had taken some of the functional elements,
but the functional elements, under the works of utility doctrine,‡ were not
protected by copyright. Microsoft also argued that certain of the features in
the Macintosh operating system were not original• to Apple, but in
fact owed their origin to earlier prototypes, particularly the Xerox
Corporation’s Star computer. And many of the features, Microsoft argued, were
covered by its earlier licensing agreement with Apple.
[88] In a series of decisions in the federal district court in
California, Apple basically got trounced. The court concluded that most of the
elements of Apple’s graphical user interface were not protected by copyright,
either because they were not original with Apple, because they were functional,
or because they were covered by the original licensing agreement.
There are other computer copyright cases, but they are
basically consistent with the Apple cases. Copying of computer code generally
constitutes a copyright infringement, but copying of the “idea” of a computer
program does not. Of course, the problem in many cases is in deciding what
constitutes “idea” and what constitutes “expression”—and on this point, courts
sometimes disagree. Yet, despite the early doubts and the not-so-perfect match,
courts have found that the basic principles of copyright—originality, works of
utility, the idea-expression distinction, substantial similarity, and fair
use*—also work just fine in determining the copyrightability of computer
programs.
*Originality,
see p. 127; works of utility, p. 185; idea-expression, p. 188;
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[80] Narrowing the scope of protection. |
Even while the courts were
tackling some of the tough issues raised by the decision to include computer
programs within the scope of copyright, Congress was also fixing some of the
problems that it thought should not have to await judicial resolution.
In 1980 Congress passed an
amendment to the Copyright Act that created a limited exception to the rights
of copyright in computer programs.† The amendment specifically allows
purchasers of computer programs to make backup copies for archival purposes, and
[89] to make
adaptations necessary to get the program to run on a particular machine. Of
course, if the computer program comes with some sort of physical copy
protection system, it might not be possible for the user to make such copies;
but the making of such copies, for the purposes specified in the amendment,
would not otherwise violate the copyright law.
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[89] A limited exception for computer programs. Notwithstanding
the provisions of section 106, it is not an infringement for the owner of a copy
of a computer program to make or authorize the making of another copy or
adaptation of that computer program provided: |
[91] Reasons for the exception (subsection
1). Because
of a lack of complete standardization among programming languages and hardware
in the computer industry, one who rightfully acquires a copy of a program
frequently cannot use it without adapting it to that limited extent which will
allow its use in the possessor’s computer. The copyright law, which grants to
copyright proprietors the exclusive right to prepare translations,
transformations and adaptations of their work, should no more prevent such use
than it should prevent rightful possessors from loading programs into their
computers. Thus a right to make those changes necessary to enable the use for
which it was both sold and purchased should be provided. |
Back in 1984, before it was
clear that copyright would or could be made to effectively protect computer
programs, the computer industry convinced Congress to pass a statute creating
exclusive rights in computer semiconductor chips. A semiconductor chip is
defined in the statute as a product “having two or more layers of metallic,
insulating, or semiconductor material, deposited or otherwise placed on, or etched
away or otherwise removed from, a piece of semiconductor material in accordance
with a predetermined pattern.” These chips are usually made of silicon crystal,
and the patterns are etched into the chips in layers so that they interact like
miniature electronic circuits, connecting miniature transistors (that is,
circuits that control other circuits). The chips are made up of as many as a
dozen or more layers: each layer is designed by making a large scale “mask
work,” which functions something like a photographic negative in that it allows
the making of copies. The images produced from the mask works are miniaturized
and embedded one on top of the other to make the three-dimensional
semiconductor chip. It’s these chips that form the guts of virtually all computers
manufactured today. Their main feature is that they are tiny: a sophisticated
chip like the Intel Pentium CPU chip measures only 1.5 square inches, yet
contains 3.1 million transistors.
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[90] “Mask
Works.” |
[90] The final product: the 4004 chip (detail). [The image shown here is the complete chip, not just a detail.] |
The problem, as far as the computer industry is
concerned, is that it’s relatively easy—or at least in 1984 it was relatively
easy—for someone [91] to
take a semiconductor chip, effectively strip away the layers, and use the chip
as the model for making a limitless number of copies. So, what takes months or
years, and maybe millions of dollars to develop, can be copied and
mass-produced in a matter of weeks or days. Congress understood immediately
that such practices, if widespread, would destroy the computer industry. Its
response was the Semiconductor Chip Protection Act of 1984, which granted
exclusive rights to the developers of semiconductor chip products.
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[92] Separate protection for mask works and
semiconductor chips. The
Committee decided that the formidable philosophical, constitutional, legal and
technical problems associated with any attempt to place protection for mask
works or semiconductor chip designs under the copyright law could be avoided
entirely by creating a sui generis form of protection, apart from and
independent of the copyright laws. The new form of legal protection would avoid
the possible distortion of the copyright law and would establish a more
appropriate and efficacious form of protection for mask works. Rather than risk
confusion and uncertainty in, and distortion of, existing copyright law as a result
of attempting to modify fundamental copyright principles to suit the unusual
nature of chip design, the Committee concludes that a new body of statutory and
decisional law should be developed. It should be specifically applicable to
mask works alone, and could be based on many copyright principles, and other
intellectual property concepts; it could draw by analogy on this statutory and
case law framework to the extent clearly applicable to mask works and
semiconductor chip protection, but should not be restricted by the limitations
of existing copyright law. |
The new law was based loosely upon copyright principles.
For example, only original works were protected, borrowing the lesser standard
of originality* from copyright, rather than the higher standard of novelty from
patent. Some features were different from copyright. For example, the period of
protection was only ten years, much less than in the case of copyrighted works
generally.† Although the act was codified in chapter 9 of title 17 of the U.S.
Code, right after the Copyright Act that comprised chapters 1 through 8, it was
decided that semiconductor chip products should be treated separately from
copyright. There were at least two reasons for doing this: first, it was
thought that separate treatment would avoid possible distortions of basic
copyright principles to make them fit the new type of work. And second, if such
protection were included under American copyright law, it might trigger U.S. treaty
obligations‡ to give equal protection to foreign creators of such works even
though their own countries didn’t grant similar protection to United States
citizens. By keeping the law separate, the U.S. could withhold protection for
foreigners, or could negotiate to get other countries to specifically pass
reciprocal laws.
‡International treaties, see p. 241.
Curiously, the Semiconductor Chip Protection Act has
turned out not to be all that important. Registrations for mask works were
below expectations, and in the first ten years after its passage, there was
only one reported case brought under the act. Why should this be? To some
extent, the evolving technology of semiconductor chips may have made it more
difficult for others to make copies anyway. Or maybe it’s just that copyright
protection of computer programs has developed so effectively [92] and so rapidly that
semiconductor chip protection just isn’t that attractive anymore. If you
manufactured such a product, would you be more interested in the ten-year
protection of your chip, or the ninety-five-year protection of the contents of
the chip? (Actually, there’s no need to choose; both types of protection are
granted.)
In any event, while the Semiconductor Chip Protection Act
was initially praised as a model for “sui generis” statutes—separate statutes
for particular types of creative works—such special protection has turned out
not to be nearly as effective as the protection afforded under the more general
principles of copyright.
The “first sale” doctrine*
provides that, once a purchaser has bought a copy of a copyrighted work, the
purchaser normally may resell, rent, or otherwise dispose of that particular
copy of the work, so long as the purchaser doesn’t make further copies. This
caused problems in the music industry, because, it was thought, the rental of
records or CDs inevitably led to the home copying of those works. Congress
responded to the problem in 1984 by making an exception to the “first sale”
doctrine for CDs and sound recordings:† while purchasers of such works could
resell them, purchasers were prohibited from renting them.
*First sale
doctrine, see p. 167.
†1984 audio rental amendment, see p. 48.
In 1990, the computer software industry was successful in
convincing Congress that it should be afforded similar treatment to sound
recordings. If companies were allowed to purchase computer programs and rent
them to the public, then the public would very likely use such rentals to make
copies of the computer programs that would displace sales. For example, if you
could rent a copy of Adobe Photoshop for, let’s say, $20, and it costs about
$500 to buy a copy, then you might be awfully tempted to simply make a copy
from the one that you’d rented. To prevent this, Congress [93] amended section 109 of
the Act to extend the exception to cover computer programs as well as sound
recordings. “[N]either the owner of a particular phonorecord nor any person in
possession of a particular copy of a computer program . . . may, for the purposes
of direct or indirect commercial advantage, dispose of, or authorize the
disposal of, the possession of that phonorecord or computer program . . . by
rental, lease, or lending . . . .”
But, you say, your kids rent copies of the latest version
of Super Mario or Final Fantasy, or other Nintendo or Playstation video games,
from the local video rental store. That’s because of an exception to the
exception. The exclusive rental right for computer programs created by section
109 does not apply to “a computer program embodied in or used in conjunction
with a limited purpose computer that is designed for playing video games. . .
.” What does that mean? It means that a video store can rent video games that run on dedicated systems, like the
Nintendo system, from which they cannot normally be copied. If your kids rent
such games, they can’t easily make copies of them, and so the rental does not
lead to a copy that displaces a sale.
So far in this chapter, we’ve
been looking at how copyright has come to embrace and protect computer
programs, the new type of creative work that makes computers do what they do.
But computers have raised a much broader issue for copyright.
As we’ve seen in the previous chapters, copyright
protects books and magazines, music and records, plays and movies, and now,
computer programs. We'll explore many other types of protected works in chapter
six. With the advent of the computer, however, all of these works are being
digitized to make them accessible to the computer. We create our literary works
on computers, using word processors to manipulate the words and letters as part
of the creative process, and to store vast amounts of information on new media
such as disks and CD-ROMS. Using image scanners and digital cameras, or
plugging our video recorders and camcorders into our computers, we capture
pictorial and photographic images, even moving images, in pixels that can be
displayed and manipulated on a computer screen and stored in ever smaller
amounts of space. Using [95] musical
interface devices (midis), we “sample” music electronically, reducing sound
itself to pure information that can be captured, stored, manipulated, and
copied with remarkable consistency and fidelity.
It’s the digital revolution. If you could look inside the
memory of a computer, you’d see all the electrical impulses, stored in a binary
code of on/off switches. If you saw these electrical or magnetic impulses, you
couldn’t immediately tell whether what you saw stored in any part of the
computer was words, images, sounds, or computer programs. But the computer
itself keeps track of what type of information is stored where, and can easily
transform the information back into the words, images, and sounds that make
sense to us as humans.
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With the computer, we can create works, copy them,
distribute them, perform them, and transform them. As we’ll see in chapter 7,
these are precisely the exclusive rights that are supposed to be protected by
copyright. Clearly something has got to change in how we think about these
creative works.
We’ll get back to some of these basic questions. But first,
we’ll look at the Internet, the popular new way of distributing the vast
amounts of information we’ve accumulated and digitized.
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[94] My favorite early CD-ROMs. |
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[95] A favorite
graphics program. |
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It’s interesting to contrast the legislative response to new technologies in the context of music, television, and computer programs. As we saw earlier, Congress adopted highly technical regulatory schemes to handle some of the big copyright issues raised by digital technology in the music industry. Relatively few new laws were required for motion pictures and television. In this chapter, we’ve seen that although Congress has adopted some amendments to handle specific problems
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[97] International
context. |
[97] in administering
copyright in computer programs, for the most part it’s the courts that are
deciding the major computer copyright issues, and they’re doing so on
traditional copyright principles, not the legislation directed specifically at
protecting computer programs. This may seem surprising, given the number of
commentators who had originally argued that computer programs were just too
new, too different from traditional notions of copyright, to expect a workable
solution to be developed. Yet a reasonable balance has been struck, and it
seems to be working fairly well. Indeed, the United States has been so
successful in developing standards for protecting computer programs that it’s
even begun exporting the concept. While many European and other countries had
originally balked at the notion of treating computer programs as within the
subject matter of copyright, the United States has recently prevailed upon most
of the rest of the world to protect computer programs under copyright.
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[96] Another favorite program. Another favorite program is Kai’s Power Goo, with which a user can manipulate pictures in all sorts of fascinating ways—again, all because the information is stored in digital form that can be readily altered. With apologies to the artist, here is a relatively mild distortion of the Mona Lisa. Many wilder variations are available using the tools pictured here—grow/shrink, move, smear, smudge, nudge, mirror toggle, smooth, and ungoo which undoes any of these effects. Using another set of tools, the user can bulge, twirl, rotate, stretch, spike, or “static” the image, or unwind any of these effects. Don’t ask what these tools do; finding out is half the fun. Using the sliding switch at the left, the user can ease the effects in and out of the image. Or the user can record a succession of different images at the bottom, and the program creates a smooth “goovie” moving from one distortion to another. All of this is of course good clean fun, since Leonardo da Vinci is dead and the Mona Lisa is in the public domain. But what if the artist is alive and the original work is still copyrighted? Stay tuned for further developments. |
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[96] 3-D rendering program. Using Ray Dream Studio, my daughter, Claire, constructs three-dimensional models in which the instructions for reproducing characters, objects, and background are stored as basic information. By relatively easy manipulation, the characters can be moved around, seen from different perspectives, or strung together over time to make animated movies. Shown here is “Trish,” a cartoon cat. |
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It’s my own opinion that the treatment of computer
programs, leaving the tough issues to be developed by the courts based upon
general copyright principles, has led to a more satisfying and nuanced
resolution. As we face the copyright issues raised by other new technologies,
such as the Internet, I would argue that the preferable approach is not to run
to Congress for quick fixes to every tough question, but, if possible, to allow
a little time for the courts to work out the issues.
