Washington, DC 20037. Software and copyright law:court judgments remain unpredictable. Richard H. Stern, MicroLaw Editor. The discussion in the last two ...
MicroLaw Editor: Richard H. Stern Stern & Roberts 2555 M Street, NW Washington, DC 20037
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Software and copyright law: court judgments remain unpredictable Richard H. Stern, MicroLaw Editor
The discussion in the last two issues of copyright protection of software, particularly of object code stored in ROMs, provoked a number of questions. Two common ones were, What is the bottom line and, what, if anything, is your recommendation? The bottom line, in my view, is that present law provides weak and unsatisfactory protection for software. Copyright registration can be secured for source code (almost surely for code in a high-level language, and quite likely for code in an assembly language). But the scope of source-code protection is limited to the particular expressions contained in the code that is registered, as contrasted to protection of the ideas or concepts embodied in that code. Object code, in the form of a printout or dump of the 1 's or 0's stored in a ROM disk, or the like, may also be registered with the US Copyright Office, but only under its "rule of doubt." That means that the Copyright Office thinks that the law requires computer programs to be registered in source-code form (i.e., in a form more or less intelligible to the Copyright Office's personnel and to the vast majority of people-in short, to those who cannot understand object code at all). But the Copyright Office is not certain as to the law, and therefore will give applicants the benefit of the doubt. This rule of doubt permits applicants to obtain a certificate of registration from the office and then go litigate the matter in the courts. The office will not accept ROMs for registration, however, even under the rule of doubt. 92
As has been indicated in earlier issues, the protection that copyright law gives object code is uncertain. The law is still evolving in the courts. In one case,1 a court refused to protect the owner of a copyright on a chess game program against a ROM unloader. In a second case,2 a court indicated that it would probably protect the owner of a microcomputer I/O program unloaded from a ROM. In a third case,3 a court indicated that a minicomputer operating system could probably be taken from disks or tape without liability for copyright infringement. Anyone who tries to give assurances and firm predictions in this field, therefore, will only deceive his audience. Nobody knows the law; one can only have opinions. At this time, software proprietors can only hedge their bets as best they can. For these reasons, I believe that a legislative solution is needed to protect the rights of software proprietors and users, and to bring more rationality and order to the field. This is, of course, more easily recommended than done. Drafting and securing enactment of a sensible software law would be difficult and time-consuming. There are very troublesome questions to be answered, such as: * What should be protected? Ideas? Concepts? Algorithms? What more than specific codes? * What should be prohibited? Unloading ROMs? Marketing enhancements? Using protected software in a computer?
* Should legal protection extend to injunctions against use and sale of imitative programs? Should the only remedy be software licensing with provision for reasonable royalties? * How should the decision be made as to whether a particular code shall be accorded protection? By what standards? By what procedures?
This is not the occasion to ask all of the pertinent questions, let alone to try to answer them. I propose that interested readers send their comments by letter to IEEE Micro. In a subsequent issue, or issues, we will integrate such letters into a feature article or paublish them in MicroLaw.
A reader has asked for an explanation of the difference between copyright on video-game programs and copyright on audiovisual elements of video games; whether an infringement of the one copyright necessarily infringes the other; and what rules of thumb may be used to distinguish infringing codes or audiovisual works from noninfringing codes or audiovisual works. In answering these questions, I will assume the following: Video-game images appear on a video monitor, against a landscape or background. The images are essentially very small and primitive cartoons rough approximations of such things as a rocket ship, person, animal, or other creature. Typically, images move left, right, up, or down, and they appear IEEE MICRO
and disappear. The motions of images are limited by the landscape and by algorithms defining their permissible movements and the effects of such movements. Images are also created or eliminated in accordance with algorithms. There are two principal modes of the video game-attract mode and play mode -which are described in detail in my article in the February 1982 issue of IEEE Micro. Marketers of video games have sought two kinds of copyrights: (1) of the game's computer program, as a literary work, and (2) of the collection of sounds and images in the game, as an audiovisual work. They secure registration of the program by depositing in the Copyright Office a printout of a dump of the object code, and preferably also a printout of the source code, together with a filled-out Copyright Office Form TX. They secure registration of the audiovisual work usually by depositing a videotape and brief description of one play-mode performance of the game (preceded by the attract-mode performance), together with a filled-out Copyright Office Form PA. The Copyright Office retains the deposits and returns to the applicant a cetificate of registration, which is essentially a photocopy of the application. The two kinds of copyrights raise very different legal issues. First, the computer program copyright involves questionssuch as those mentioned earlier-as to whether object codes are copyrightable, and whether it is copyright infringement to make or sell a duplicate of the physical form of an object code (such as a ROM). The audiovisual work copyright involves such questions as whether the images in the alleged work are too trivial to be copyrighted, whether registration of one performance of the game's play mode (one permutation of the image sequences) confers copyright protection on all performances of that game's play mode (all possible permutations of the images in various sequences), and how one can separate the copyrightable elements of the videotaped performance from the uncopyrightable elements (which may be old expressions, mere ideas, or trivial elements). Several independent programs can be written to produce the same audiovisual work, and slight changes in the object code for a game may cause a very different looking graphic display or audiovisual work. That means that it does not follow that one type of copyright is necessarily infringed when the other one is. For example, some video games have very similar graphics but very different code, because they run on different hardware.
August 1982
There are no satisfactory rules of thumb for determining video-game infringement questions. Thus, the fact that 90 percent of the object code in program A is different from that in program B does not necessarily mean that program A does not infringe program B. The duplicated 10 percent of the code might be the most important and creative part. Al-
Nobody knows the law; one can only have opinions. At this time, software proprietors can only hedge their bets as best they can.
ternatively, the duplicated part could be merely trivial, public-domain material. In the case of an audiovisual work, the legal test seems to be subjective overall similarity, a very hard kind of test to explain sensibly. In one recent case, a trial court held that a certain video game, K. C. Munchkin, was not so subjectively similar to Pac-Man that it infringed, but a court of appeals then came to the opposite conclusion and reversed the trial court's judgment. Clearly, predicting the
courts' overall subjective reactions is not something about which great selfconfidence is justified. This area of the law is in considerable flux; discerning a consistent legal pattern is still quite difficult. An article reviewing further developments is planned for a future issue.
Another subject that deserves dialogue in IEEE Micro is software license restrictions. At least one of the editors, among others, has frequently groaned and complained about software licenses with highly restrictive clauses. Questions have been raised about the legality and enforceability of some such provisions. Interested readers are invited to send in software license clauses about which they are concerned, indignant, or gratified.
Notes 1Data Cash Systems, Inc. v. JS&A Group, Inc., 480 F.Supp. 1063 (N.D. Ill., 1979), affirmed on other grounds, 628 F.2d 1038 (7th Cir., 1980). 2Tandy Corp. v. Personal Micro Computers, Inc., 524 F.Supp. 171 (N.D. Cal., 1981). 3Data General Corp. A ntitrust Litigation, 490 F.Supp. 1089, 1113 (N.D. Cal., 1980).
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