By Jyoti Kiran
IV Year National Law Institute University, Bhopal.
Developments in technology create new industries and new opportunities for reproduction and dissemination of works for authorship. A number of new issues have arisen relating to the growth of electronic publishing, distribution and viewing of copyrighted works. Along with new and expanded markets for works comes the ever-increasing challenge of protecting works from piracy or infringement. For example, in 1998, an advance copy of the first single album Madonna’s newest album was released to foreign radio stations. Almost immediately unauthorized copies were placed on web sites allowing anyone with internet access to download a copy before the single was released for sale or radio play in the United States.
Both the courts and Congress continued to be faced with the issues that were unimagined just a decade ago. More “high-tech” legislation was introduced in the 105th Congress than in any previous Congress. Courts struggle with the complexity and balance between protecting the rights of the authors and promoting the progress of science and useful arts as is mandated by the Constitution. This Project Report is intended to introduce the case law development relating to copyright protection for software programs and the cutting edge issues presently confronting authors, users, legislators and judges like the infringement and piracy of computer programs.
COPYRIGHT PROTECTION FOR SOFTWARE PROGRAMS
Protractable Elements of Computer Programs
What copyright protection does give to the owner is a bundle of particular rights that are to some extent dependent on the type of work involved. “A computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to allow users to make certain adaptations to programs and to make archival copies of programs.” Copyright Protection extends to all of the copyrightable expressions embodied in the program. It’s not available for ideas, program logic, algorithm, systems, methods, concepts or layouts. Case laws have classified computer software as falling within the statutory definition of copyrightable subject matter as literary works, although some manifestations of the software may be protectable as audio-visual works. The bundle of rights given to the owner of copyright in literary works are the rights to control 1) reproduction of the work, 2) preparation of derivative works, 3) distribution of copies of the work, 4) public performances of the work and 5) public display of the work.
Copyright protection extends to screen displays as well, if they possess copyrightable material. Screens consisting of mere menus or blank forms usually are not protectable, either because they lack original expression or because they are useful articles. The defendant in Lotus Development Corp. v. Borland International, Inc., successfully argued that the menu command hierarchy of the plaintiff’s Lotus 1-2-3 spreadsheet, which it admittedly copied in its competing spreadsheet program, constituted a “method of operation” unprotectable under Section 102(b). The First Circuit Court of appeals accepted the defendant’s argument, reasoning that the plaintiff’s menu commands are the means by which a user operates the spreadsheet, similar to the buttons on a videocassettes recorder. Accordingly, the court ruled that no infringement had occurred.
Although the merger doctrine and section 102(b) disallow protection for the menu commands by which users operate a software program, they do not extend necessarily to disallow protection for the underlying software which interprets and implements these user commands. In Apple Computer Inc. v. Franklin Computer Corp., for example, the defendant argued that the plaintiff’s operating system program was uncopyrightable as a “method of operation”. An operating system program, such as DOS, UNIX or Windows, and forms the “platform” upon which application programs, such as word-processing and spreadsheet programs run. The court rejected the defendant’s argument and thereby expansive reading of Section 102(b).
CASE LAW DEVELOPMENTS RELATING TO COPYRIGHT PROTECTION FOR COMPUTER SOFTWARE
Some of the most complex copyright cases involve the extent of protectability for computer programs. A number of litigants have asserted that computer operating systems are not protectable inasmuch as they are uncopyrightable “processes” or systems expressly excluded from the protection.. Courts generally have held otherwise, reasoning that if other programs can be written or created that perform the same functions, then operating system is an expression of an idea and is therefore copyrightable. If the idea cannot be expressed in any other way, however, then it is purely necessary to the purpose and is functional, and hence not copyrightable. This is the “merger doctrine” that provides that if an idea in a work can be expressed in only one way or a very limited number of ways, it is protectable inasmuch as it would be unfair to allow one party to appropriate an idea and exclude all others from using it. When an idea and its expression are so merged or inseparable that the unprotectable idea cannot be used without also using protectable expression, then use is not infringement.
Courts have struggled with the infringement issues in computer-related cases in part because the issues are often technical, unfamiliar and complex. Thus, experts are often relied upon rather than the “ordinary observer” commonly referred to in other infringement actions. Moreover, unlike songs and books, which are highly creative, computer programs are usually task oriented, performing very specific functions. Historically, “useful articles” are excluded from copyright protection.
Early in the development of the art of software writing, the originators thereof feared that traditional forms of protection such as patents and copyrights would not give them sufficient protection and relied upon trade secret law. It soon became clear, however, that this was not the best solution to the problem since to establish trade secret protection; one must take some steps to impose a confidential relationship on those who have access to the secret. In a free flowing industry such as the computer software business, this is difficult.
Attention has, therefore, returned to the traditional protection of patents and copyrights. As discussed above many computer-related inventions are patentable. However, patent protection cannot be obtained for inventions in this field that do not meet the current test for patentable subject matter. Furthermore, to be patentable the program must be "not obvious". This can be a difficult requirement to fulfill. Furthermore, patent protection requires a fairly prolonged examination by the Patent Office before any rights arise and is thus not the ideal way of dealing with copyists who may be extremely quick off the mark.
When a computer program is written out on a piece of paper, it is quite clear that copyright exists in this work in the same way as it would in respect of any other literary work. The first problem with which the courts had to grapple was whether copyright law could be extended to cover computer programs, which exist merely in magnetic or electric form, or as specific circuits etched on to a silicon chip.
The United States Copyright Office has provided for the registration of computer programs since 1964. However, that practice was on the basis it was the duty of the Copyright Office to give applicants the benefit of a doubt as to whether computer programs were protectable by law. Indeed, prior to the Copyright Act of 1976, court decisions and the opinions of the leading writers in the field were widely split on the question of whether computer programs were entitled to copyright protection and, if so, to what extent protection was to be given.
The 1976 Act itself was not very helpful in resolving these doubts, although s. 102 states that copyright protection exists in works that are fixed in any present or future tangible medium even if it can be reproduced only by means of a machine or other device. On the other hand, Section 117 of the 1976 Act as originally enacted specifically stated that it was not the intention of the Act to change the preexisting law in respect to protection of computer programs. The Act, however, did not indicate what the preexisting law was? This problem was finally resolved in 1980 by the passage of the Computer Software Copyright Act, 1980 which repealed original Section 117. A new Section 117 was enacted which provided that the owner of a computer program had a limited right to copy or adopt that program if this was necessary to ensure that the program could be used in a particular computer. Indeed, the new Act even provided a definition of a computer program as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result".
The first generation of cases to come before the courts mostly involved actions for copyright infringement in ROM's (Read Only Memory). Three main lines of argument were used by defendants to try to resist actions brought by the originators of a computer program, which have been incorporated into the defendants ROMs:
1. ROMs are utilitarian.
2. The program as it appears on a ROM is in object code form and therefore not intelligible to human beings, it falls outside the definition of "copy" in the Copyright Act.
3. It is against public policy to give computer manufacturers copyright protection for software because such protection would hinder competition in the development of new computers.
The courts have not been impressed by arguments that computer software is purely utilitarian when they are presented in the context of direct copying of a particular program. For example, in an early case the Third Circuit Court of Appeals has rejected the argument that the use of a computer program encoded in a ROM was utilitarian and the argument that since the coding was in object code it was not a copy intelligible to humans and, therefore, outside the Copyright Act protection. The latter point was established by analyzing the definition of "copy" in the Copyright Act.
“Material objects, other than phono records, 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.” 
The court held that since Congress had chosen to define "copy" broadly in this manner, it would be perverse to seek to interpret this broad language in a manner, which would severely limit the copyrightability of computer programs by restricting this protection to the text and not to duplication of the program on a fixed silicon chip. The court further rejected an argument that ROMs were utilitarian objects and, thus, not subject to copyright. Only the original program had to be copyrightable. Once copyright existed in that program, the only question remaining was whether a ROM constituted a copy of it. As noted above, the court had no difficulty in deciding that this was the case.
As can be seen from the case discussed above where consideration of the meaning of "copy" was of importance in determining whether there was copyright protection for a given product, in copyright law the issue of what constitutes protectable subject matter and what constitutes infringement are often intertwined? Furthermore one should bear in mind the fact that unlike the situation with patents, there is no Court of Appeals with nationwide jurisdiction for copyright cases and so different views may be taken in different circuits
Once the basic issue of whether copyright protection could exist at all for computer software had been resolved the next issue was to determine what exactly might be covered by copyright, particularly if the alleged infringer had not copied code line by line but had taken something less specific. The first group of cases to tackle this issue considered whether the "look and feel" of the two programs is the same and if so and if the defendant had access to the plaintiffs program, then copyright infringement was likely to be held to have occurred. Thus, if there was substantial copying of details of a program designed to fulfill a particular function on one type of hardware in producing software to fulfill the same function on different hardware, the mere fact that substantial effort was involved in making the conversion or even that different programming languages were used might not avoid a finding of copyright infringement. This is particularly the case if what is shown on the screen at each stage of running both the copyrighted and the allegedly infringing program or if similar errors appear in both programs.
In Whelan Associates Inc. v. Jaslow dental Laboratory Inc., the Third Circuit Court of Appeals was confronted with the question: whether, even if there was no copying of object code or source code, there could be copyright infringement in copying the "overall structure" of a program? The case was one where the alleged infringement was a rewrite of a program written in one computer language in a different language.
The court concluded that since computer software was classified as a literary work under the Copyright Act and since prior decisions had held that there could be infringement of copyright in a play or book by copying the plot or plot devices of the play or book when the total "concept and feel" of the alleged infringing work was substantially similar to that of the copyrighted work, the same test should apply to infringement of copyright in computer programs.
The defendants had argued that this conclusion was inappropriate in cases of computer software because of the basic premise in copyright law that copyright should apply only to the expression of an idea and not the idea itself. According to the defendants, the structure of a computer program is by definition an idea rather than an expression. The Court, however, dismissed this argument by pointing out that it was possible to write a totally different program to perform the same tasks. The Court thus concluded that the detailed structure of a program was part of the expression of an idea rather than an idea itself and upheld a finding of copyright infringement.
Early in the 1990's, however, the pendulum began to swing as software writers started to complain that the protection being given by the courts was overly broad and as such was inhibiting new developments. Concern that the "look and feel" test was leading to overly broad protection led at first to adoption of a two-part test assessing intrinsic and extrinsic similarities. In Johnson Controls the court focused on the question of whether the structure, sequence and organization of the alleged infringement was the same as that of the plaintiffs program and in Lotus Dev Corp v. Paperback Software a different court looked at the flow charts of the parties to determine whether there was infringement.
In 1992 the idea began to take hold that a computer program was in some ways like a play or other literary work in which a variety of possibilities presented themselves for protection from, at the most specific the actual script to, at the most general, the broad outlines of the plot. Other traditional copyright doctrines such as the concepts that in some cases there could be a merger between the idea and its expression because of the limited ways in which a particular idea could be expressed or that protection would not be afforded to features that were dictated by external requirements also started to be applied in the computer software field. The advantage of these approaches was that copyright lawyers had already grappled with these issues over many years and if the principles that had evolved in dealing with plays could be applied to computer programs, thus should facilitate rapid development of the law.
One of the earliest cases to use such an approach was Auto Skill Inc v. National Educational Support Systems Inc . In this case Judge Mechem specifically declined to follow the look and feel test and stated: A better approach for determining what is idea as opposed to expression is known as the ‘abstractions test’ articulated by Judge Learned Hand in Nichols v. Universal Pictures Corporation ... upon any work, and especially a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may be no more than the most general statement of what the play is about, and at times may consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ideas to which, apart from his expression, his property never extended.
Due, in part, to the utilitarian nature of certain software elements, courts have refined the test for determining “substantial similarity” with respect to computer software programs. The leading test is the “abstraction-filtration-comparison” test developed more fully by the Second Circuit Court of Appeals in the case of Computer Associates International Inc v. Altai Inc. The test is broken down into three steps:
(1) The court “abstract” the plaintiff’s software program to determine which of the program’s elements constitute unprotectable, abstract ideas or public domain materials;
(2) The court “filters” unprotected elements from protected elements to leave the “golden nugget” of protected expression; and the object of this is to separate out protectable elements of the expression from non-protectable material. Such non-protectable materials include elements dictated by efficiency, elements dictated by external factors, and elements taken from the public domain.
In Altai, for example, The Second Circuit filtered from the plaintiff’s software program elements that were required by efficiency and other external factors and elements had been taken from the public domain. The court determined that the remaining “core” of protected material was not substantially similar between the two programs and ruled in favour of the defendant.
(3) The court then compares the protected expression in the plaintiff’s work with the defendant’s allegedly infringing work to determine if they are substantially similar. Once filtration is complete the court moves on to comparing that which has been found to be susceptible of protection with the alleged infringement. Although traditionally it has been said that for there to be infringement a "substantial" part of the work must be taken, the word "substantial" has often been construed in a qualitative rather than a quantitative sense. The Second Circuit has expressed the requirement as follows: It is only when the similarities between the protected elements of the plaintiff's work and the allegedly infringing work are of "small import quantitatively or qualitatively" that the defendant will be found innocent of infringement.
Here it should be noted certain acts that have been considered by the courts to determine whether they constitute an impermissible use of copyrighted software. Thus in MAI Systems Corp. v. Peak Computer Inc, the Ninth Circuit Court of Appeals found that the simple unauthorized act of loading a program into the random access memory of a computer constituted infringement since it created a copy that can be "perceived, reproduced or otherwise communicated".
The “abstraction-filtration-comparison” test for determining whether there has been infringement in cases other than where there has been direct actual copying has now been endorsed by several appeal courts. In Lotus Development v. Borland , however, the First Circuit doubted its usefulness in cases where the issue was one of literal copying of a literal element of a program. As noted by the Eleventh Circuit, this is not surprising since the test was developed to deal with the problem of non-literal copying of non-literal elements (the court defining literal elements as source code and object code only)
In addition to the complex issues surrounding protection and infringement of the computer-related works, there are significant economic issues as well. It has been estimated that softwrae piracy causes a loss of revenue of nearly $3 billion annually in the United States alone. One expert has estimated that there may be nearly thirty thousand sites on the Internet that offer software illegally. Just the day after the film titanic won several Oscar awards, fifty separate web sites offered illegal video copies of the film. The copyright infringement of software, also called ‘software piracy’ refers to several practices when done without the permission of the copyright holder:
Copyright infringement of software is extremely common in Mexico, China, Russia, Brazil, and several other parts of the world where it is legal. The economic effect of computer piracy is reportedly more than $11 billion worldwide per year, costing 130,000 jobs in the United States alone. Consequently, amny companies notably Microsoft Corporation, are stepping up their crusade against software piracy, both through educational programs and legal action.One counterfeiting operation in early 1999 in California resulted in a seizure of $30 million of pirated MICROSOFT software. However it is illegal in mostly English-speaking nations.
As mentioned in the beginning of the project that the paper is intended to introduce the case law development relating to copyright protection for software programs and the cutting edge issues presently confronting authors, users, legislators and judges like the infringement and piracy of computer programs. Looking into the whole development of law relating to copyright protection for software, its not wrong to say that the Courts struggle with the complexity and balance between protecting the rights of the authors and promoting the progress of science and useful arts as is mandated by the Constitution.
Until recently, copyright was not regarded as being of much relevance to the sale of products other than traditionally "artistic" products such as books and gramophone records. Today, however, in addition to these traditional areas, copyright has become an extremely important weapon in preventing piracy of computer software and preventing copying of various useful items to which "art" has been applied. Copyright infringement of software is extremely common in countries like Mexico, China, Russia, Brazil, and several other parts of the world where it is legal.
Today, subject to certain provisions relating to "fair use", the Copyright Act gives the copyright owner exclusive rights over the reproduction, preparation of derivative works, distribution and public performance and display of the copyrighted work. With this large development of copyright law, a fact cannot be denied that copyright infringement has reduced to a grate extent.
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1. "How many pirates should a software firm tolerate?" International Journal of Research in Marketing December 2003 (Volume 20, No. 4).
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 Section 101 of the Copyright Act, 1976.
 49 F.3d 807 (1st Cir. 1995).
 MiTek Holdings Inc. v. Arce Engineering Co. 89 F. 3d 1548 (11th Cir. 1996) (menu structure of an engineering computer program is uncopyrightable under section 102(b) and the merger doctrine.)
 714 F.2d (3rd Cir. 1983).
 Campbell Dennis, Copyright Infringement, Company Law Yearbook of International Business, Special issue, p. 418.
 According to section 102 of the Copyright Act, 1976.
 Bouchoux, Intellectual Property: The Law of Copyright, Patents & Trade Secrets, p. 227.
 Heath Christopher, Max Planck’s Series in Intellectual Property, vol.5 p. 439.
 The sub-argument of this being that even if not all such ROM's are utilitarian, at least those whose function is to work the computer itself are.
 Definition of ‘copies’ as per section 101 of the Act.
 797 F.2d 1222 [3d Cir 1986], Cert. Denied 479 U.S. 1031(1987).
  F.S.R. 1 US, Ct of Appeal.
 49 F.3d 807 (1st Cir. 1995) aff’d, 516 U.S. 233 (1996).
 (1879) 101 U.S. 99.
 (1930) 45 F (2d) 119.
 Gates Rubber Co. v. Bando Chemical Indus. Ltd., 9 F.3d 823 (9th Cir. 1993).
 982 F.2d 693 (2d Cir. 1992).
 Computer Associates International Inc v. Altai Inc, 982 F.2d 693 (2d Cir. 1992) at 710.
 991 F.2d. 511; 518 n.5 (9th Cir. 1993).
 49 F.3d 807 (1st Cir. 1995)
 "How many pirates should a software firm tolerate?" International Journal of Research in Marketing, December 2003 , Volume 20, No. 4.