Infringement of Copyright in Computer Software: A Legal Analysis, Slides of Law

Download Infringement of Copyright in Computer Software: A Legal Analysis and more Slides Law in PDF only on Docsity! GOALS FOR THIS CLASS • To learn more about infringement of the right of reproduction Docsity.com WRAP-UP POINTS: INFRINGEMENT • To sustain an action for infringement, copyright owner must prove • 1. Ownership of valid copyright • 2. Copying by D • 3. Unlawful Appropriation by D Docsity.com HERBERT ROSENTHAL v. KALPAKIAN (9th Cir. 1971) Docsity.com MERGER DOCTRINE • Herbert Rosenthal Jewelry Corp. v. Kalpakian (2d Cir. 1971) • What is the merger doctrine? • What is its relationship to infringement? • How did it apply in this case? Docsity.com NICHOLS v. UNIVERSAL PICTURES (2d Cir. 1930) • Did the film “The Cohens and the Kellys” infringe the play “Abie’s Irish Rose”? • NB. Character test Docsity.com “TOTAL CONCEPT AND FEEL” • What is meant by this? See Roth Greeting Cards v. United Card Co. Docsity.com COMPUTER SOFTWARE • To what extent is computer software protectable under copyright law? Docsity.com COPYRIGHTABILITY OF COMPUTER SOFTWARE • Computer software, by its nature as written work intended to serve utilitarian purposes, doesn’t fit in well with our existing IP system. • In 1974 Congress established National Commission on New Technological Uses of Copyrighted Works (CONTU) to study implications of new technologies and recommend revisions to IP law. Docsity.com EARLY CASES IN 1980s • Conflict between hardware manufacturers • Focus on to what extent literal copying of computer software violates copyright law • Apple v. Franklin (3d Cir. 1983) clearly establishes that an operating system is copyrightable and that exact copying of computer code infringes programmer’s copyright in the code. • No cases since have held otherwise Docsity.com SECOND GENERATION SOFTWARE CASES • To what extent can competitors copy nonliteral elements, such as program’s underlying structure, sequence, or organization. • How far does copyright protection extent beyond the literal elements of a work? Docsity.com NON-LITERAL COPYING • Should non-literal copying of computer software be protected under copyright law? • What are the economic arguments in favor and against this? • What about the jurisprudential arguments? Docsity.com Computer Associates Int’l v. Altai, Inc. (2d Cir. 1992) • Was there access? • Did the Court follow Whelan? Why or why not? Docsity.com Computer Associates Int’l v. Altai, Inc. (2d Cir. 1992) • What was the correct test for nonliteral copying of computer software? • Is this a good test? • Should we follow it for novels? • Does it adequately reflect the fact that copyright protection exists for selection and arrangement? • How would the Whelan case have come out if the Altai approach was applied? Docsity.com