CS 291 -- Week 7 Presentation

Software Proprietary Rights

Is software theft a serious violation of ethical and legal constraints? How does it fit into established categories of intellectual property law?
Should we accept the fact that software piracy is common as a sign that we should simply accept it, or should we view this as a mark of moral laxity and promote programs that help us live up to the ideals written into our law? (Snapper, CESV, p. 148)
Special characteristics of software: hybrid between a patentable product and copyrightable written work, easily copied, use of software by another does not preclude the original owner from using it
Debatable Points: free vs. proprietary, copyrights vs. patents, look and feel protection?

(Nissenbaum, Should I Copy my Neighbors Software?)

Because a programmer writes, or creates, software, he or she owns it. For some, this claim is so obvious as to not even need justification. (CESV, p. 206)
Consequentialist Arguments:
1. ...probable decline in software production. Because copying reduces the volume of software sales it deprives programmers of income. With an erosion of potential revenues, fewer individuals will be attracted to software programming. (CESV, p. 202)
2. ...projected rise in software prices. Wishing to recoup anticipated losses caused by unauthorized copying, programmers will charge high prices for their software. (CESV, p. 202)
Deontological/Rights-Based Arguments:
1. ...copying software without permission is immoral because it constitutes a violation of a moral right, a neglect of moral obligations. Depriving a programmer of earnings is wrong not only because of undesirable ramifications, but because it is unjust and unfair.
2. ...we have an obligation to respect their desire that we not make unauthorized copies. The obligation is absolute, not broken merely at the discretion of the private-end user. (CESV, p. 205)

(Stallman, Why Software Should Be Free)

...we must ask what we, as programmers together, can do for the freedom of mankind. We must ask what we ought to do, not just what is profitable. (CESV, p. 190)
Three different levels of material harm come from such obstruction:
1. Fewer people use the program,
2. none of the users can adapt or fix the program, and
3. Other developers cannot learn from the program, or base new work on it. (CESV, p. 192)

(Kahin, The Software Patent Crisis, CESV, p. 214)

Copyright protects expression but not underlying ideas. Patents protect useful processes, machines, and compositions of matter. Traditionally processes have [not included] mental steps. Thus, computer programs fall somewhere between the traditional territories of copyright and patent.
In 1960s, the Patent Office granted some patents for processes that where then in hardware but would now be in software, but did not grant patents for programs per se. Later, the Court of Claims and Patent Appeals (CCPA) maintained that computer programs were patentable. But Supreme Court over-ruled CCPA in Gottschalk v. Benson (1972) and Parker v. Flook (1978), saying that algorithms were not patentable. In Diamond v. Diehr (1981), Supreme Court concluded that programs that did not preempt all uses of a computer algorithm could be patented if used to physically transform materials. Despite narrowness of ruling, Patent Office started to grant almost all applications for software patents.
The Federal Circuit, in its decision In re Iwahashi, has effectively opened up the doors of the patent system to algorithms, contrary to Supreme Court decisions.
Other methods of protection: Trade secrets, which does not allow others to learn, and sui generis protection, which lacks international enforceability.

(Office of Technology Assessment, Evolution of Case Law on Copyrights and Computer Software)

Synercom Technology, Inc. v. University Computing Co.: Court held that the sequence and ordering of data was inseparable from the idea underlying the format and were thus not copyrightable.
Broderbund Software, Inc. v. Unison World, Inc.: Court upheld protection for the overall structure of a program, including its audiovisual displays.
Lotus Development Corporation v. Paperback Software International: Court extended copyrightability of the non-literal elements of computer programs to menu command structures. Protected structure, sequence, and organization of the menu command system, including symbols to represent each command. Problem with decision is it might prevent standardization of user interfaces, like in cars.