Copyright VII Class Notes: February 14, 2003 Law 507 | Intellectual Property | Spring 2003 Professor Wagner

Copyright VIICopyright VII

Class Notes: February 14, Class Notes: February 14, 20032003

Law 507 | Intellectual Property | Spring Law 507 | Intellectual Property | Spring 20032003

Professor WagnerProfessor Wagner

2/14/032/14/03 22Law 507 | Spring 2003Law 507 | Spring 2003

Today’s AgendaToday’s Agenda

1. Copyright & Computer Software

a) Infringement

b) Fair use

c) Reverse engineering


Copyright of SoftwareCopyright of Software

1.1. Basic point: software is generally Basic point: software is generally copyrightablecopyrightable

2.2. Protection of Literal ElementsProtection of Literal Elementsa) Apple v Franklin (1983)

3.3. Protection of Nonliteral ElementsProtection of Nonliteral Elementsa) Why is drawing the idea/expression distinction

so difficult in the software context?b) Whelan test: idea = purpose of the utilitarian

worko What scope of protection does this afford?


Nonliteral ElementsNonliteral Elements

Computer Associates v Altai (2nd Cir. Computer Associates v Altai (2nd Cir. 1992)1992)• What is the difference between OSCAR 3.4

and OSCAR 3.5?• How was 3.5 developed? Why?• Why is 3.5 even being accused of ©

infringement?

• What test does the court establish for the analysis of nonliteral infringement?


Nonliteral ElementsNonliteral Elements


Nonliteral Elements: Nonliteral Elements: FiltrationFiltrationWhat elements are excluded from protection?What elements are excluded from protection?

1.1. Consider: what is the overall analysis?Consider: what is the overall analysis?

2.2. Why might we exclude elements related Why might we exclude elements related to:to:• Efficiency• External factors• Public domain

• Are these good proxies for the idea/expression distinction?


Functional ElementsFunctional Elements

Lotus v Borland (1st Cir. 1995)Lotus v Borland (1st Cir. 1995)• What, exactly, did Borland include in its

software that was problematic?• Why does Altai not apply here?• Is the court right in concluding that menu

structure is a “method of operation”?o What is special about “methods of operation”?

• What is distinct about the concurrence’s approach? (Do you agree?)

• What is the ‘bottom line’ from Lotus?


Fair Use of SoftwareFair Use of Software

Lewis Galoob Toys v Nintendo (9th Cir. Lewis Galoob Toys v Nintendo (9th Cir. 1992)1992)• What does the ‘Game Genie’ do? How?• In what way does the Game Genie create a

copyright infringement issue? (Who is infringing? How?)

• Is the court right in determining that the Game Genie is fair use?o Do you agree with the ‘market analysis’ factor?o (Can you reconcile it with the Texaco case?)


Reverse EngineeringReverse Engineering

Sega v Accolade (9th Cir. 1992)Sega v Accolade (9th Cir. 1992)• Why did Accolade not simply get a license

from Sega?• What did Accolade do to trigger an

infringement claim? (Was any of Sega’s code used in Accolade’s games?)

• Why do the following arguments not work:o “Intermediate copying is not infringement”;o “Reverse engineering is only utilizing ideas in the

code, not expression”


Reverse EngineeringReverse Engineering

Sega v Accolade (9th Cir. 1992)Sega v Accolade (9th Cir. 1992)• Why does the court decide that reverse

engineering is fair use?o Purpose of the useo Effect on the marketo Nature of the work

• Should reverse engineering be fair use as a matter of law?o Why would we want to enforce interoperability?o Why NOT allow, e.g., Sega, to control the market

for complementary products?– In what cases might you be concerned about

this?


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Copyright VII Class Notes: February 14, 2003 Law 507 | Intellectual Property | Spring 2003 Professor Wagner