Encouraging Software Reuse

Stanford Law Review, Vol. 49, P. 255, February 1997.

27 Pages Posted: 20 Jan 1997 Last revised: 14 May 2014

See all articles by Mark A. Lemley

Mark A. Lemley

Stanford Law School

David W. O'Brien

Zagorin O'Brien Graham LLP


In the last fifteen years, the primary means of legal protection for computer software has shifted from copyright to patent. We argue that one unanticipated effect of this trend may be to encourage software reuse. Traditionally, computer programmers have reinvented software components, coding programs from scratch each time a new one is desired rather than buying and reusing existing components. This process is inefficient, and is in stark contrast to the normal practice in other engineering disciplines. We argue that copyright law encourages reinvention and discourages the development of a market for tradeable software components because it allows competitors to appropriate the value of a new software invention without payment to the original developer of that invention, but forbids competitors from copying the computer code implementing that invention. The result is that competitors take inventions from others, but write their own code to implement those inventions. By contrast, patent law gives strong protection to inventions, forcing competitors to license the patent in order to make any product incorporating the idea. It is reasonable to expect that one effect of increasing reliance on patent law will be an increase in licenses of both the patented idea and the implementing code. This licensing should in turn pave the way for the trading and reuse of software components.

Note: This paper was published in its final form at 49 Stan. L. Rev. 255 (1997).

JEL Classification: K29, L86

Suggested Citation

Lemley, Mark A. and O'Brien, David W., Encouraging Software Reuse. Stanford Law Review, Vol. 49, P. 255, February 1997.. Available at SSRN: https://ssrn.com/abstract=10286

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

David W. O'Brien

Zagorin O'Brien Graham LLP ( email )

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Suite 350
Austin, TX 78731-1191
United States

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