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by
Anne M. Fitzgerald[1]
The scope of protection given to computer programs has recently been examined by the Second and Ninth circuits of the US Courts of Appeal. The courts considered the extent to which protection is afforded the non-literal elements of a program, such as its structure and how far reverse engineering of a computer program will be permitted. These two matters were discussed by the Courts of Appeals for the Second Circuit in Computer Associates International Inc v Altai Inc and the Ninth Circuit decision of Sega Enterprises Ltd. v Accolade Inc. The courts have shifted from an expansive protection established in earlier decisions such as Whelan Associates v Jaslow Dental Laboratory
___________________________
The United States, in common with many other countries, confers copyright protection on computer programs as literary works under the Copyright Act.[2] The scope of that protection is however still being worked out as courts grapple with how to differentiate between the protectable expression and the unprotectable ideas and functional elements embodied in these hybrid works. In two recent cases the US Courts of Appeal for the Second and Ninth Circuits warned against the temptation to force "the proverbial square peg in[to] a round hole" in applying established principles of copyright law to the relatively new medium of computer software.
The issues being addressed by the courts in those cases were:
(1) the extent to which copyright extends beyond the expression of a computer program in code to protect the program's non-literal elements, such as its structure; and
(2) the extent to which reverse engineering of a computer program is permissible.
In what has come to be regarded as the first generation of computer software copyright cases, it was held that the literal aspects of computer programs, that is their source and object codes, are protected by copyright: Apple Computer, Inc. v Franklin Computer Corp.[3]. In the second generation of cases attention turned to the question of the extent to which copyright protects not just the literal code but the structure of the program. Drawing on the principle that the non-literal structures of literary works are protected by copyright, the Third Circuit in Whelan Associates v Jaslow Dental Laboratory, Inc. (Whelan)[4] held that, by analogy, copyright protects the non-literal structures of computer programs. Even in the absence of any literal copying of the source or object codes, the Third Circuit held that a finding of infringement could be based upon showing that the program's "structure, sequence and organization" had been copied. Further, the court set out a test for differentiating the protectable expression from the unprotectable ideas in computer programs: the "purpose or function" of a computer program is the idea, and "everything not necessary to that purpose or function would be part of the expression of the idea."[5] The Whelan decision thereby established an expansive scope of copyright protection for computer software and it stood as the leading decision in the area until mid-1992. Whelan's influence and authority have, however, been significantly undermined by a series of federal appeals courts decisions beginning with Computer Associates International Inc v Altai Inc (CAI)[6].
In CAI the Court of Appeals for the Second Circuit[7] rejected the approach taken in Whelan, and criticized the Third Circuit's "flawed reasoning", attributing it to an "outdated appreciation of computer software." The Second Circuit was particularly critical of the Whelan test for distinguishing idea from expression in computer programs, which was generally regarded as being "conceptually overbroad."
The facts in CAI were that Computer Associates (CA) produced and marketed a job scheduling computer program known as CA-SCHEDULER. One of CA-SCHEDULER's sub-programs, ADAPTER, was an operating system compatability component which translated the language of a given program into a language that could be understood by the computer's operating system. Altai also produced a job scheduling program, ZEKE, which it wanted to re-write so that it could function with other operating systems. Altai recruited Arney, a computer programmer employed by CA, to work on designing Altai's modified version of ZEKE. Arney was intimately familiar with the various aspects of ADAPTER, having worked on improvements to a version of it and when he left CA's employment he took a copy of the ADAPTER source code with him. In re-writing ZEKE, Arney introduced a new component-program, OSCAR, which he developed from the ADAPTER source code and about 30% of which was copied from ADAPTER. The first of the OSCAR programs was known as OSCAR 3.4.
Upon confirming its suspicions that Altai had appropriated parts of ADAPTER, CA obtained copyrights on CA-SCHEDULER and instituted infringement proceedings. Altai then set about re-writing OSCAR 3.4 with the aim of saving as much of the program as legitimately could be used and purging the parts which had been literally copied from ADAPTER. Using "clean room" procedures, eight Altai programmers, none of whom had been involved in the development of OSCAR 3.4 were given a description of the ZEKE operating system services from which to re-write the appropriate code. Arney was excluded from the process and his copy of the ADAPTER source code was locked away. The resulting program was OSCAR 3.5 which contained none of the ADAPTER source code.
Altai ultimately conceded liability for Arney's literal copying of the ADAPTER source code into OSCAR 3.4. The issue in contention was whether the re-written version, OSCAR 3.5, also infringed copyright in CA-SCHEDULER. CA argued that even after the re-write OCSCAR 3.5 remained substantially similar to the structure of ADAPTER with respect to the general flow charts, organization of inter-modular relationships, parameter lists, macros, and the list of services which the programs obtained from their operating systems.
While the Second Circuit in CAI had "no reservation" in subscribing to the logic that, analogizing to other literary works, copyright protects the non-literal structures of computer programs, the issue now was to determine the scope of that protection. In doing so, the Second Circuit refused to apply Whelan's idea-as-function-or-purpose test and rejected the concept that copyright protects the "structure, sequence and organization" of computer programs. The Whelan test for differentiating between idea and expression was seen as problematic as it was based on the assumption that only one idea underlies a computer program and that once it is identified, everything else is protectable expression. This criticism focuses on the practical reality of the structural design of computer programs:
[A] computer program's ultimate function or purpose is the composite result of interacting subroutines. Since each subroutine is itself a program, and thus, may be said to have its own "idea", Whelan's general formulation that a program's overall purpose equates with the program's idea is descriptively inadequate.[8]
Further, the court regarded Whelan's synonymous use of the terms "structure, sequence, and organization" as demonstrating a "flawed understanding of a computer program's method of operation." Whelan's rationale, based on a "somewhat outdated appreciation of computer science", was "suspect".
The Whelan approach to distinguishing idea from expression in computer programs was regarded as relying too heavily on "metaphysical distinctions" while placing insufficient emphasis on practical realities. In its place, Second Circuit in CAI proposed a three-step procedure, based on the well-known abstractions test, to be used by the courts in determining whether the non-literal elements of two or more computer programs are substantially similar. The three steps in the process described by the Second Circuit are abstraction, filtration and comparison:
In ascertaining substantial similarity under this approach, a court would first break down the allegedly infringed program into its constituent structural parts. Then, by examining each of these parts for such things as incorporated ideas, and elements that are taken from the public domain, a court would then be able to sift out all non-protectable material. Left with a kernel, or possibly kernels, of creative expression after following this process of elimination, the court's last step would be to compare this material with the structure of an allegedly infringing program. The result of this comparison will determine whether the protectable elements of the programs at issue are substantially similar so as to warrant a finding of infringement.[9]
Rather than viewing the plaintiff's program as a whole, the court should, as a first step, break the plaintiff's program down into its constituent structural parts and isolate the level of abstraction within each part. The court adopted the abstractions test for separating idea from expression which was first expounded by Judge Learned Hand in the 1930 Second Circuit decision in Nichols v Universal Pictures Corp. [10]:
Upon any work . . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the [work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his "ideas," to which, apart from their expression, his property is never extended.[11]
Although originally applied in the context of literary works such as such as novels as plays, the Second Circuit was of the opinion that the abstractions test could equally be applied to computer programs. It was preferable to the Whelan approach because it recognized that numerous ideas and expressions may be contained within a single work. In applying the test to software the court dissects the structure of the plaintiff's program and isolates each level of abstraction within it, proceeding in order of "increasing generality", beginning with the very specific and moving to the very general. The test would be applied first to the object code, progressing to the source code, parameter lists and services required, and ending with the program's ultimate function. In performing this process the court is essentially required to retrace and map the steps taken by the program designer, in reverse order.
The second step involves subjecting each part of the plaintiff's program, at each level of abstraction, to a "filtering" process in which the court sifts out the unprotected elements. Filtration involves the application of the well-developed doctrines of merger, scenes a faire, and public domain. All the following non-protectable material must be filtered out at this stage: ideas; expression dictated by considerations of efficiency so as to be necessarily incidental to the ideas being expressed; expression already in the public domain; expression dictated by external factors such as the mechanical specifications of the computer on which the program is intended to run, compatibility requirements of other programs, manufacturers' design standards, demands of the industry served by the program and widely accepted programming practices.
The process of filtration defines the scope of the plaintiff's copyright and what remains is the program's "core of protectable expression".
The third step involves a comparison of that residual "core of protectable expression" in the plaintiff's program - the "golden nugget" of copyright - with the defendant's program to determine the extent and significance of the copying.
Applying the three-stage procedure which it had described, the Second Circuit agreed with the determination of Judge Pratt in the district court that OSCAR 3.5 contained effectively no protectable expression at all and that it was not substantially similar to ADAPTER.
The Second Circuit's approach in CAI has subsequently been approved and applied by the Ninth Circuit in Sega Enterprises Ltd v Accolade, Inc. [12] and by the Federal Circuit in Atari Games Corp. and Tengen Inc. v Nintendo of America Inc..[13]
However, the decision in CAI has also attracted a great deal of criticism, especially from the computer industry which is now driven by software rather than hardware. A leading industry commentator has gone so far as to describe CAI's effect of reducing the scope of copyright protection for computer programs as "a catastrophe" and a "legal Chernobyl" for the US-dominated software industry.[14]
An obvious problem with the CAI approach is that breaking a computer program down into its component parts for analysis risks the exclusion of protectable expression reflected in the way in which those various elements are combined or organized. While the individual elements may be unprotectable, significant creative expression may exist in the way the individual components have been assembled or arranged in the program. Engaging in a process of atomizing a plaintiff's work and removing individually unprotected elements before comparing it to the defendant's work may in fact obscure or eliminate protectable elements of the plaintiff's work. If misused, the filtration test could potentially be applied to dissect a work to the point of reductio ad absurdum.[15] The filtration analysis proposed in CAI also shifts the burden of proof from the defendant to the plaintiff who has to prove that the elements of the program are protectable expression.
Another problem with the Second Circuit's decision in CAI is that it is based on an explicit scepticism about the appropriateness of using the copyright system to protect computer software. The Second Circuit's adoption of the abstraction-filtration-comparison test was the result of its characterization of computer software as being "essentially utilitarian [in] nature." The court recognized that a computer program is a hybrid which, while containing literary expression, is also a "highly functional, utilitarian component in the larger process of computing." Having characterized computer programs as "innovative utilitarian works containing expression" with little room for creativity on the part of the programmer, the court proceeded to adopt a narrow view of the scope of copyright protection for software. It referred to the protectable expression of computer programs as the "golden nugget" or the "kernel, or possibly kernels" which may remain after filtration. The notion that writing software is a particularly constrained activity is, however, disputed by computer programmers who contend that it is actually highly creative and involves a considerable measure of aestheticism.[16]
The court was clearly of the view that copyright may not be the most suitable means for protecting the intellectual property in computer programs. In many software copyright decisions, the Second Circuit observed, the courts were obviously attempting "to fit the proverbial square peg in a round hole." The Second Circuit suggested that the time had come for Congress to re-examine the issue of protection of computer programs, possibly by establishing a successor to the National Commission on New Technological Uses of Copyrighted Works ("CONTU") which reported in 1978.[17] In the meantime, the courts were required to give effect to the Congressional intention that computer programs are to be protected as literary works under copyright law. In doing so, however, it was important that long-standing copyright doctrine was not manipulated in order to accommodate these hybrid works. While broad copyright protection for computer programs would provide incentives for software producers and thus have attractions from a policy perspective, the Second Circuit was of the view that the courts should not engage in such a distortion of basic copyright principles for reasons of policy. The Second Circuit acknowledged that it expected that the application of established copyright principles in the accordance with the test it had proposed in CAI would result in a narrowing of the scope of copyright protection for software.
In questioning whether copyright is the best means of providing comprehensive protection for computer programs, the Second Circuit's decision echoes the predominant tone of the academic commentary on this issue over the last decade. However, the decision to provide protection for software within the copyright system has already been fairly conclusively made, both in the United States and elsewhere, and the real question now is how software can best be accommodated within the copyright system. Copyright is widely accepted internationally as the appropriate means of protecting computer programs. A recent study by the US Patent and Trademark Office found that 48 out of a total of 72 countries surveyed had enacted copyright protection for computer programs.[18] The GATT Dunkel Draft text on TRIPs also affirms that computer programs are literary works and provides for fair use and rental rights. Revisions to the Berne Convention provisions relating to literary works are currently being sought by the World Intellectual Property Organization to forestall further debate on the status of computer programs by confirming that they belong within the category of literary works.
The leading authority on the right of a user to reverse engineer or decompile a computer program is the 1992 decision of the U.S. Court of Appeals for the Ninth Circuit in Sega Enterprises Ltd v Accolade, Inc.[19]. The issue before the court was whether a person who is neither the copyright owner nor a licensee is permitted to decompile a copyrighted computer program in order to understand the ideas and functional elements underlying it. Decompilation in this context means reconstitution of the program's source code from the object code.
The facts in Sega were as follows. Sega Enterprises Ltd ("Sega") developed and marketed video entertainment machines, including the Genesis console, and video game cartridges. Accolade Inc. ("Accolade") was an independent developer, manufacturer and marketer of computer entertainment software. Sega licensed its copyrighted computer code to independent developers of computer game software who produced and sold video games which were compatible with the Genesis console. Accolade had considered the possibility of entering into a licensing agreement with Sega but did not proceed to do so.
In order to make video games which could be played on the Genesis console Accolade reverse engineered Sega's video game programs to discover the requirements for compatibility and, using this information about the interface specifications, wrote its own programs for the Genesis. As part of the reverse engineering process Accolade decompiled the object code in Sega's game cartridges into source code. Using a Genesis console and three Sega game cartridges, Accolade's engineers wired a decompiler into the console circuitry and made printouts of the source code. The printouts were studied to identify common areas among the game programs, the decompiled code was loaded back into the computer, and experiments were performed to discover the interface specifications for the Genesis console. Information obtained about the requirements for a Genesis-compatible game was included in a development manual written by Accolade employees. The manual contained functional descriptions of the interface specifications for the Genesis but did not include any of Sega's code. Based on the information in the development manual, Accolade then created its own programs for the Genesis.
In response to Sega's claim that in decompiling its copyrighted computer programs Accolade had infringed its exclusive rights,[20] Accolade argued that the decompilation was authorized by s.117 of the Copyright Act and that it amounted to a fair use in the terms of s.107 of the Act.
One of the exclusive rights of a copyright owner under s.106 is to "reproduce the work in copies" and to authorize others to make copies. Any an allegedly infringing copy must be fixed in some tangible form "from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."[21] This requirement was satisfied by the computer file generated by the decompiler, the printouts of the decompiled code, and the computer files containing Accolade's modifications of the code. Accolade's intermediate copying of the computer object code while reverse engineering the video game programs therefore fell within Sega's exclusive rights as owner of the copyright.
Accolade argued that decompilation is authorized by s.117 of the Copyright Act which allows the owner of a copy of a computer program to copy or adapt the program "as an essential step in the utilization of the computer program in conjunction with a machine [provided] it is used in no other manner".[22] Section 117 was enacted to make it clear that running a program in a computer does not infringe copyright even though it involves making a copy of the program when it is loaded into the computer's memory. However, in decompiling the object code and converting it into source code and making printouts of the source code Accolade had made copies far in excess of what is contemplated by s.117.
Accolade also contended that decompilation of Sega's copyrighted object code in order to gain an understanding of the unprotected ideas and functional concepts underlying it was a fair use permitted by s.107 of the Copyright Act. The fair use defence allows copying "for purposes such as criticism, comment, news reporting, teaching ... scholarship, or research." S.107 sets out four non-exclusive factors courts should take into account when considering whether a particular use is fair: the purpose and character of the copying; the nature of the copyrighted work; the amount and substantiality of the copying; and the effect upon the potential market for or value of the copyrighted work.
The Ninth Circuit held that, as a matter of law, decompilation of a copyrighted computer program is a fair use if it provides the only means of obtaining access to the unprotected ideas and functional elements embodied in the program and the person seeking access has a legitimate reason for studying or examining those aspects of the program. Working laboriously through the statutory fair use factors, the Ninth Circuit found that the first, second and fourth statutory factors weighed in favour of Accolade, while the third "only slightly" favoured Sega.
Accolade's purpose in using Sega's code was essentially non-exploitative and the commercial aspect of its use was indirect and of minimal significance. Although Accolade's ultimate purpose was to produce Genesis-compatible games, its direct purpose in using the copyrighted material was to discover the functional requirements for Genesis compatibility in order to modify its existing games for use on the Genesis console. Further, Accolade's identification of the functional elements required for compatibility with the Genesis console benefitted the public by increasing the number of video games available for use with Sega's machine.
The fact that the copyrighted work in issue was a computer program was also relevant as the second statutory factor reflects the fact that varying levels of protection attach to different copyrighted works. Like the Second Circuit in CAI, the court characterized computer programs as essentially utilitarian, containing "many logical, structural, and visual display elements" which were required by the particular "function to be performed, by considerations of efficiency, or by external factors such as compatibility requirements and industry demands." Given the essentially utilitarian nature of computer programs, the court regarded the Second Circuit's approach in CAI to be correct.
Applying the test adopted in CAI and breaking the program down into its subroutines and sub-subroutines and identifying the idea or core functional element of each, the program was found to contain little protectable expression.
Another significant difference between computer programs and other copyrighted works is the fact that computer programs are distributed for public use in the form of object code embedded in a silicon chip or on a floppy disk. Whereas the unprotected aspects of functional works are generally readily accessible to the human eye, the unprotected ideas and functional concepts contained in computer program object code can only be accessed by decompilation. Decompilation, necessarily involving copying, was the only viable means by which Accolade could gain an understanding the functional requirements for compatibility with the Genesis console. If decompilation of the object code were not permitted Sega would obtain, de facto, a monopoly over the functional aspects; such a monopoly can be conferred by patent law but not by copyright. The court concluded that:
[b]ecause Sega's video game programs contain unprotected aspects that cannot be examined without copying, we afford them a lower degree of protection than more traditional literary works.[23]
The court also ruled in favour of Accolade regarding the effect of its use of the copyrighted material on the potential market for Sega's programs. Accolade's decompilation had an indirect effect on the market for Genesis-compatible games in that it enabled Accolade to gain entry into the market without a licence from Sega. However the nature of the video games market is such that users typically purchase multiple games and there was no basis for finding that Accolade's use had significantly affected the market for Sega's games, since consumers may well chose to purchase cartridges produced by both Sega and Accolade. In any case, Sega's attempt to maintain its monopoly by making competition impossible contradicted the statutory purpose of promoting creative expression.
The only factor which the court found to weigh even slightly in Sega's favour was the amount and substantiality of the use. However, even though Accolade had decompiled entire Sega programs, the fact that the game cartridges which it produced contained only the interface portion of the code meant that this factor carried very little weight.
On the facts of the case, the Ninth Circuit held that Accolade had made out the fair use argument. The unprotected aspects of the computer program could only be accessed by decompilation and Accolade had a legitimate interest in gaining access to ascertain how to make Genesis-compatible game cartridges.
A key issue for the Ninth Circuit in reaching its conclusion was the policy underlying the Copyright Act of encouraging the creation of original works by protecting the expression but leaving the ideas and functional elements in the public domain. Unlike other copyright works, computer programs are distributed to the public in object code form and there is no way of discerning those unprotected ideas and functional concepts apart from decompilation. The court was adamant that the owner of copyright in a computer program should not be able to obtain a de facto monopoly over the ideas and functional elements of the programs, thereby precluding public access and defeating the fundamental purpose of the Copyright Act.
Using similar reasoning, the Federal Circuit in Atari Games Corp v Nintendo of America[24] also concluded that "reverse engineering object code to discern the unprotectable ideas in a computer program is a fair use." Fair use, however, did not give the decompiler the right to do go beyond what was necessary to obtain an understanding the ideas and processes in the copyrighted work and to substantially reproduce the protected expression:
Fair use to discern a work's ideas, however, does not justify extensive efforts to profit from replicating protected expression. ... [F]air use in intermediate copying does not extend to commercial exploitation of protected expression. The fair use reproductions of a computer program must not exceed what is necessary to understand the unprotected elements of the work.
This limited exception is not an invitation to misappropriate protectable expression. Any reproduction of protectable expression must be strictly necessary to ascertain the bounds of protected information within the work.[25]
The approach of the Ninth and Federal Circuits regarding decompilation is similar to that which was adopted in the 1991 European Community Council Directive on the Legal Protection of Computer Programs.[26] Article 6 of the EC Directive establishes a user right to decompile. Article 9 provides that the right to decompile cannot be contracted away by the user as any contractual provisions contrary to Article 9 are void.
1. The authorization of the rightholder shall not be required where reproduction of the code and translation of its form within the meaning of Article 4(a) and (b) are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:
(a) these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorized to do so;
(b) the information necessary to achieve interoperability has not previously been readily available to the persons referred to in subparagraph (a); and
(c) these acts are confined to the parts of the original program which are necessary to achieve interoperability.
2. The provisions of paragraph 1 shall not permit the information obtained through its application:
(a) to be used for goals other than to achieve the interoperability of the independently created computer program;
(b) to be given to others, except when necessary for the interoperability of the independently created computer program; or
(c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.
3. In accordance with the provisions of the Berne Convention for the protection of Literary and Artistic Works, the provisions of this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the right holder's legitimate interests or conflicts with a normal exploitation of the computer program.
Article 6 of the EC Directive provides that decompilation is permissible if it is essential to achieve interoperability of an idependently-created program with other programs and is confined to those parts of the original program which are necessary to achieve interoperability. Paragraph 12 of the Preamble to the Directive gives a broad definition of "interoperability" as "the ability to exchange information and mutually to use the information which has been exchanged." Decompilation must be done by a licensee or someone with a right to use the program; the information acquired by decompilation must not be otherwise readily accessible; and decompilation cannot be used to create a program of substantially similar expression.
The fair use doctrine as set out by the Ninth and Federal Circuits in Sega and Atari potentially permits decompilation in a broader range of cases than would be approved under the EC Directive. Both the European Commission and the US Courts agree that the right to decompile only arises if the information contained in the object code cannot be discerned in any other way. The EC Directive however emphasizes the requirement that the purpose of decompilation be to achieve interoperability of a newly created computer program with existing programs and limits decompilation to those parts of the program related to interoperability with other programs. Such a limitation is not apparent in the analyses of the the Ninth and Federal Circuits which would permit reverse engineering of elements of the program not related to interfaces with other programs. The US courts would also permit exploitation of the information obtained by reverse engineering not only to create a program compatible with the decompiled program but also to create an idependent program performing the same functions and competing with the original program.
This recent line of decisions represents a pendulum swing away from the expansive protection which was established in Whelan towards a distinctly narrower scope of copyright protection for computer software.
In confining the extent of copyright protection for software the courts have relied upon a strict and conservative application of long-standing copyright principles developed in relation to literary works. They have also emphasized that while the copyright system provides an incentive for creative activity, its ultimate purpose is to serve the public interest by promoting broad availability of new creative works. Doctrine and policy required that copyright protection for computer programs be confined narrowly. These decisions have generated a great deal of debate and criticism and are likely to hasten moves both within the United States and internationally to re-examine the appropriate scope and form of intellectual property protection for digital technologies.
[1] Lecturer in Law, University of Tasmania at Hobart; J.S.D. Candidate, Columbia University, New York;
BSW, University of Queensland; LLB(Hons), University of Tasmania; LLM, University of London; LLM, Columbia University
[2] Sec.101 of the Copyright Act, 17 U.S.C. 101, as amended by Pub.L. 96-517, Sec.10(a), 94 Stat.3028 (1980)
[3] [1983] USCA3 1033; 714 F.2d 1240 (3d Cir. 1983), cert. denied, 464 U.S. 1033 (1984)
[4] [1986] USCA3 976; 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987)
[5] Id at 1236
[6] 23 U.S.P.Q. 2d 1241 (2d Cir. 1992); Amended opinion filed December 17, 1992, vacating the decision of June 22, 1992
[7] In an opinion written by Judge John Walker
[8] CAI at 1252
[9] Id at 1252-1253
[10] 45 F.2d 119 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931)
[11] Id at 121
[12] 24 U.S.P.Q. 1561 (9th Cir. 1992)
[13] [1992] USCAFED 794; 975 F.2d 832 (Fed. Cir. 1992)
[14] Anthony L. Clapes & Jennifer M. Daniels, Revenge of the Luddites: A Closer Look at Computer Associates v Altai, The Computer Lawyer, 11, Nov. 1992, at 11
[15] Id
[16] Anthony Clapes, Assistant General Counsel for International Business Machines Corporation has described software as "the ultimate creative machine": Symposium on CAI, Cardozo Law School, New York, March 22, 1993. See also Anthony L. Clapes, Patrick Lynch, and Mark R. Steinberg Silicon Epics and Binary Bards: Determining the Proper Scope of Copyright Protection for Computer Programs, (1987) UCLA L. Rev. 1493; and Anthony L. Clapes, Software, Copyright, & Competition: The "Look and Feel" of the Law, (1989), Quorum Books, Westport, at 115-116: The writing exercise is "constrained more by the author's imagination than by the relatively weak constraints imposed by the nature of the desired result."
[17] CONTU was established by Congress to investigate the interrelationship of new technology and copyright law, see, see Pub.L. No. 93-573, @ 201, 88 Stat. 1873 (1974). The CONTU Report recommended, inter alia, that the 1976 Copyright Act "be amended . . . to make it explicit that computer programs, to the extent that they embody the author's original creation, are proper subject matter for copyright." See National Commission on New Technological Uses of Copyrighted Works, Final Report 1 (1979). Congress adopted CONTU's recommendations and amended the Copyright Act by adding, a provision to 17 U.S.C. @ 101 which defined the term "computer program." See Pub.L. No. 96-517, @ 10(a), 94 Stat. 3028 (1980).
[18] Keplinger, Michael S., "International Protection for Computer Programs", United States Patent and Trademark Office, Office of Legislation and International Affairs, February 19, 1993
[19] 977 F.2d 1530 (9th Cir. 1992); Decision filed January 6, 1993
[20] 17 U.S.C. S.106(1)-(2): grants to the copyright owner the exclusive rights 'to reproduce the work in copies', to 'prepare derivative works based upon the copyrighted work', and to authorize the preparation of copies and derivative works.
[23] Sega at 1524
[24] [1992] USCAFED 794; 975 F.2d 832 (Fed. Cir. 1992); Decided November 20, 1992
[25] Id at 843
[26] EC Software Directive of May 14, 1991; 91/250/EEC, 1991 O.J. L 122, May 17, 1992
The implementation date of the Directive is 1 January 1993. As of May 1993 it has been implemented in the United Kingdom, Italy, Denmark, Greece, Ireland, Austria and Switzerland.
A more detailed analysis of the comparison between US and EC law on decompilation is found in Jerome Huet and Jane C. Ginsburg, Computer Programs in Europe: A Comparative Analysis of the 1991 EC Software Directive, 30 Colum. J. Transnat. L. 327 (1992).
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