Convergence in the Law of Software Copyright?

High Technology Law Journal, Vol. 10:1, 1995

Stanford Public Law Working Paper No. 2127335

34 Pages Posted: 10 Aug 2012

Date Written: 1995

Abstract

Virtually all the courts to consider non-literal infringement of software copyrights have lined up with the “narrow constructionists,” engaging in “analytic dissection” of computer programs in order to determine whether any copyrightable expression has actually been copied. Most commonly, this analytic dissection has taken the form of the “abstraction-filtration-comparison” test set forth in Computer Associates v. Altai. While there are still a few courts in which the “total concept and feel” approach remains the law, the approach is moribund: since Altai was decided, no court has endorsed the broader “total concept and feel” approach.

Rather than ending, the debate over software copyright law appears to be shifting its focus. Having finally resolved the debate that has been plaguing software copyright law since its inception, courts are discovering to their chagrin, that deciding what test to apply actually tells you very little about how to apply that test. Despite the convergence of courts on Altai's filtration approach, courts remain fundamentally conflicted in deciding how broadly to protect software copyright. Further, there remains a good deal of misunderstanding about what exactly it means to “abstract” and “filter” a computer program.

I suggest a unified approach to evaluating non-literal infringement in software copyright cases. This approach focuses on exactly what is alleged to have been copied. It also acknowledges the increasing role of patent law in protecting computer software, and the role of other copyright concerns such as compatibility and fair use. The result of this unified approach is to provide relatively narrow copyright protection for computer programs in most cases of non-literal infringement.

Suggested Citation

Lemley, Mark A., Convergence in the Law of Software Copyright? (1995). High Technology Law Journal, Vol. 10:1, 1995; Stanford Public Law Working Paper No. 2127335. Available at SSRN: https://ssrn.com/abstract=2127335

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

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

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