Copyright Protection of Computer Program Structure
Brooklyn Law Review, Vol. 64, p. 519, 1998
25 Pages Posted: 23 Jul 2009
Date Written: 1998
Copyright plays an important role in the protection of computer software, but beyond the protection of program code, however, courts are extremely confused about the scope of copyright protection in a computer program. This judicial confusion is nicely exemplified by the Second Circuit's 1997 decision in Softel, Inc. v. Dragon Medical & Scientific Communications, Inc. Although the Second Circuit, in Computer Associates International, Inc. v. Altai, had earlier established the most widely accepted test for separating protected from unprotected elements in computer programs, the Softel panel, however, understood neither the correct technical application of the Computer Associates test nor its implicit underlying policy basis. As a result, the case resorted to metaphysics to determine what is protected expression in a computer program and what is not. Indeed, much of the language of the Softel opinion harkens back to the approach of the Third Circuit in Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., which was expressly rejected in Computer Associates. Softel is not a step forward but a retrogression. This Comment discusses the facts of Softel, articulates a test for separating protected expression from protected idea in a computer program, and applies that test to program structure, sequence, and organization, and then returns to the Softel decision to illustrate how and where the Second Circuit panel in that case lost its bearings and to speculate briefly on the implications of the Softel decision for the future. It argues that copyright should protect computer program code from verbatim copying or slavish mechanical or electronic translations. Other program elements, such as structure, sequence, and organization and elements of software interfaces, should not be protected by the copyright in the program code, that is, by the computer program copyright.
Keywords: Softel, Inc. v. Dragon Medical & Scientific Communications, Inc.,
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