About the Book
This book deals comprehensively with the question of the scope of copyright protection for computer programs. Offering a unique blend of scholarship, technical rigor, and readability, it dispels the confusion and controversy that surround the application of copyright law to computer programs. Through an orderly development of facts and analysis it shows why the copyright law is the appropriate regime for software protection and explains the nature of copyright protection for software. Alternating between essay format and case study, the book provides expert counsel to those interested in this interface between technology and law. Software, Copyright, and Competition: The `Look and Feel' of the Law, is undoubtedly one of the best pieces of legal scholarship in any subject this editor has ever had the pleasure to read. As to its subject matter, it is the best analysis of `look and feel' written to date. . . . The book is very readable. Not only does the author `explain' the law for the non-lawyer, but he explains the `zen' of computer programming to the non-programmer. With wit and insight he puts to rest the many old wives tales the legal community believes about programmers. . . . In the best of all possible worlds, this book would be mandatory reading for any judge or arbitrator faced with a `look and feel' case. The Software Law Bulletin, January 1990
Two forces, innovation and imitation, fuel the intense competition that underlies the dramatic technological progress taking place in the computer industry. As the competitive battleground shifts increasingly to the software sector, a vigorous debate has arisen over whether the principal legal regime for protecting the asset value of computer programs--the copyright law--encourages or inhibits that competition. Industry executives, computer lawyers, law professors and lawmakers alike are participating in the debate, the outcome of which will quite literally shape the future of the computer industry.
This book deals comprehensively with the question of the scope of copyright protection for computer programs. Offering a unique blend of scholarship, technical rigor, and readability, it dispels the confusion and controversy that surround the application of copyright law to computer programs. Through an orderly development of facts and analysis it shows why the copyright law is the appropriate regime for software protection and explains the nature of copyright protection for software. Alternating between essay format and case study, the book provides expert counsel to those interested in this interface between technology and law.
Table of Contents:
Introduction
Setting the Stage
Learning from the Past
The Business of Writing Software
Apple v. Franklin
Castles in the Air, and on Diskette
The Art of Programming
Writing for Computers
Programming Languages: The SAS Case
Programming Structures: The Synercom Case
Programming Flow
Program Logic and Other Elements of Expression
Whelan v. Jaslow
The Shaping of the Invisible
The Range of Programming Expression
NEC v. Intel
Bright Lines and Gray Areas: The Frybarger Case
The "Dissemination" Argument: Broderbund v. Unison World
Clean Rooms and Fright Wigs: The Plains Cotton Case and Some Principles for Software Clones
Rights of Copyright Owners: The Softklone Case
IBM v. Fujitsu
An Introduction to Compatibility
Compatibility Demons: Johnson v. Uniden and Further Principles for Software Clones
The "Look and Feel" Cases
Into the Corrida
Index
About the Author :
ANTHONY L. CLAPES is a Senior Corporate Counsel at IBM and is presently responsible for managing IBM's intellectual property and antitrust litigation. For many years he has represented IBM in large and complex cases. Much of his recent casework has related to software copyrights. Mr. Clapes has lectured on copyright law as it applies to computer programs in numerous symposia, and he is the co-author of an influential law article on the subject: Silicon Epics and Binary Bards: Determining the Proper Scope of Copyright Protection for Computer Programs, 34 UCLA L. Rev.1493 (Winter 1987).
Review :
"Finally, a book has been written that explains copyright issues to programmers and explains programming to lawyers and policy makers. Much as Apple's MacIntosh (TM) has defined an interface for personal computing, Software, Copyright, and Competition defines the interface between computer science and this branch of the law. It develops a provocative framework within which to deal with the debate on copyright protection for computer software. Whether the reader agrees with the author's directly stated opinions or not, reading this book is both a useful and an entertaining experience."-Edward B. Stead Vice President and General Counsel of Apple Computer, Inc.
"Mr. Clapes' book is a most welcome contribution to the literature of computer law. Perhaps most valuable--and certainly most refreshing--it takes the reader into the real, human world behind the technological jargon and juristic labels that have become rampant, and the notable cases in this field. Programs as literary works' and programmers as authors, ' structure, sequence and organization, ' microcode' and interface' protection, and of course look and feel, ' Whelan, Broderbund and others become vibrant and understandable to lawyer, engineer, and lay person alike. Not all will agree with the author's contentions, but few interested in informed debate will fail to gain quite meaningful insight."-Jon A. Baumgarten Partner, Proskauer Rose Goetz & Mendelsohn and former General Counsel of the U.S. Copyright Office
"Tony Clapes has written a very readable explanation of the history and current state of copyright law as it applies to computer software. His insight into the controversy over narrow versus broad application of copyright law to software identifies the protagonists and antagonists clearly and with sympathy for both, although he does not hesitate to take a position supporting a broad interpretation, which he justifies with conviction and reason. This book is a must for anyone, lawyer, hacker, or user, who wants to understand why there is so much controversy in computer software copyright law, where it is heading, and what the impact will be on the industry."-Bernard A. Galler Professor, Electrical Engineering and Computer Science The University of Michigan, Ann Arbor
?Software, Copyright, and Competition: The "Look and Feel" of the Law is undoubtedly one of the best pieces of legal scholarship in any subject this editor has ever had the pleasure to read. As to its subject matter, it is the best analysis of "look and feel" written to date. . . . The author does far more than explain the reported facts and decisions; he provides the story behind the case. The amount of inside detail and the breadth of insight provided is simply overwhelming. . . . The book is very readable. Not only does the author "explain" the law for the non-lawyer, but he explains the "zen" of computer programming to the non-programmer. With wit and insight he puts to rest the many old wives tales the legal community believes about programmers. . . . In the best of all possible worlds, this book would be mandatory reading for any judge or arbitrator faced with a "look and feel" case.?-The Software Law Bulletin
?The author is a Senior Corporate Counsel at IBM and is presently responsible for managing IBM's intellectual property and antitrust litigation. He is eminently knowledgeable on the title topics of software copyright and competition. This 237-page hardbound volume provides a well-written review of the past in software development and the protection--and extends into the present and future. The book provides an excellent introduction to just what programming and software are about--as well as providing a well-written analysis of the software copyright law and the current leading cases (as of 1989). This book is recommended as good general educational reading for lawyers not only on software protection but as an introduction to the technology, the art' of programming and to the software industry. . . . All-in-all, an exceptionally well written book from a well qualified author.?-Law Office Economics and Management
?The recent $150 million suit by Xerox against Apple Computer for copyright infringement demonstrates that issues related to software authorship remain a concern. Clapes . . . provides a well-written and even entertaining account of the complex issues involved. For example, he likens "comprehensive nonliteral similarity" to whistling while eating soda crackers, which "produces just as messy a result." He humanizes the technical matters with illustrations from actual cases, e.g. Apple v. Franklin, IBM v. Fujitsu. . . This excellent and stimulating volume will be welcomed both by the librarian working with computers and the librarian working with copyright issues.?-Computers in Libraries
?This book deals comprehensively with the scope of copyright protection for software programs. Combining technical expertise and readability, it explains the application of copyright to programs, and demonstrates that copyright is indeed an appropriate form of intellectual property protection for them.?-Computer Law and Tax Report
?What [Clapes'] book clarifies is why court decisions are not intuitive, the way programmers would like them to be. Law works its uneasy way through precedent, precedent. Software, Copyright, and Competition may, at the very least, teach us all patience.?-Hugh Kenner for Byte Magazine, April 1990
"What ÝClapes'¨ book clarifies is why court decisions are not intuitive, the way programmers would like them to be. Law works its uneasy way through precedent, precedent. Software, Copyright, and Competition may, at the very least, teach us all patience."-Hugh Kenner for Byte Magazine, April 1990
"The author is a Senior Corporate Counsel at IBM and is presently responsible for managing IBM's intellectual property and antitrust litigation. He is eminently knowledgeable on the title topics of software copyright and competition. This 237-page hardbound volume provides a well-written review of the past in software development and the protection--and extends into the present and future. The book provides an excellent introduction to just what programming and software are about--as well as providing a well-written analysis of the software copyright law and the current leading cases (as of 1989). This book is recommended as good general educational reading for lawyers not only on software protection but as an introduction to the technology, the art' of programming and to the software industry. . . . All-in-all, an exceptionally well written book from a well qualified author."-Law Office Economics and Management
"The recent $150 million suit by Xerox against Apple Computer for copyright infringement demonstrates that issues related to software authorship remain a concern. Clapes . . . provides a well-written and even entertaining account of the complex issues involved. For example, he likens "comprehensive nonliteral similarity" to whistling while eating soda crackers, which "produces just as messy a result." He humanizes the technical matters with illustrations from actual cases, e.g. Apple v. Franklin, IBM v. Fujitsu. . . This excellent and stimulating volume will be welcomed both by the librarian working with computers and the librarian working with copyright issues."-Computers in Libraries
"This book deals comprehensively with the scope of copyright protection for software programs. Combining technical expertise and readability, it explains the application of copyright to programs, and demonstrates that copyright is indeed an appropriate form of intellectual property protection for them."-Computer Law and Tax Report
"What [Clapes'] book clarifies is why court decisions are not intuitive, the way programmers would like them to be. Law works its uneasy way through precedent, precedent. Software, Copyright, and Competition may, at the very least, teach us all patience."-Hugh Kenner for Byte Magazine, April 1990
"Software, Copyright, and Competition: The "Look and Feel" of the Law is undoubtedly one of the best pieces of legal scholarship in any subject this editor has ever had the pleasure to read. As to its subject matter, it is the best analysis of "look and feel" written to date. . . . The author does far more than explain the reported facts and decisions; he provides the story behind the case. The amount of inside detail and the breadth of insight provided is simply overwhelming. . . . The book is very readable. Not only does the author "explain" the law for the non-lawyer, but he explains the "zen" of computer programming to the non-programmer. With wit and insight he puts to rest the many old wives tales the legal community believes about programmers. . . . In the best of all possible worlds, this book would be mandatory reading for any judge or arbitrator faced with a "look and feel" case."-The Software Law Bulletin
