Copyright or Copywrong?
Michael Gemignani

For decades now Congress and the courts have been trying to deal with the vexing issue of protection of intellectual property (IP) in the age of electronic data processing and the Internet. Thus far, in my view anyway, they have not fared very well, but it is not entirely their fault.

First and foremost, The Law moves at a majestic pace, often drawing on precedents that stem from a far simpler age. The Supreme Court did not rule on a computer-related IP case until 1972, well into the electronic age, when it declared, or so it seemed, that a mere algorithm could not be patented. Nevertheless, the Patent and Trademark Office has been handing out patents with abandon on what most of us would consider to be mere algorithms.
Second, the issues are hideously complex. Should a computer program be subject to copyright as a work of authorship, a patent as a useful invention, protected as a trade secret, or all–of-the-above? In fact, judging from industry practice, all-of-the-above is the correct answer. But who can blame software developers for shotgunning when the law is uncertain. Better cover all the bases than lose protection.
Third, the technology is hideously complex. Some have suggested that there ought to be an appellate court with judges who have substantial technical expertise just to handle cases involving some of the questions posed by today’s technology.
Fourth, there are powerful conflicting interests. There are those who preach that information should be free, and those who declare that the Internet will be the death of commercial publishing. I am not taking sides here, but there is no question there are sides to take. Copying and distributing music, books, movies, home videos, what have you, has become a trivial exercise. Yet the Constitution charges Congress with passing laws to protect IP to encourage authors, artists, and even software developers. If there were no commercial rewards in producing software, then only the Open Software Foundation would stay in business, which may, or may not, be a good thing. There is also “fair use,” which allows a copyrighted work, or portion thereof, to be used without infringement, such as including an excerpt from a book in a review of that book. But the bounds of fair use are not clear and are being tested mightily by the Internet; think YouTube and Google.
Fifth, there is the issue of international law. It used to be that for a work to be copyrighted, it had to have a proper copyright mark. To bring US copyright law into compliance with international conventions on copyright, Congress did away with the need for a copyright mark. Now any original work of authorship, say your doodling on a napkin, is copyrighted. If someone steals that napkin and publishes it, you can sue for copyright infringement.
Sixth, and possibly of greatest concern to the average computer user, there is law that Congress has enacted to try to protect IP, but which makes illegal some practices that are commonplace today. Debra Littejohn Shinder in a paper published on TechRepublic pointed out ten ways that “you might be breaking the law with your computer.” Three of these deal with IP. In particular, Ms. Shinder cites the Digital Millennium Copyright Act (DMCA) which makes it a federal offense to circumvent copy protection, even if you own a legitimate copy of the work in question and removing the copy protection is solely for your own convenience. She also cites the “No Electronic Theft Act” which criminalizes certain copyright infringement that used to be only a matter for the civil courts. That is, rather than dealing with a private corporation suing you for damages, you may be dealing with the FBI threatening to throw you in jail.
The picture is now so muddled that it is hard to know what a person is to do. I do not condone piracy and firmly believe that those who create IP have a right to make a reasonable profit from it, but one can only hope with the current state of affairs that The Law will be applied rationally to prosecute only egregious offenders and not someone who cracks copy protection so he can burn a song he purchased on-line to a CD for his personal use.
However muddled the situation is now, it is likely to get ever more muddled. The technology is changing faster than Congress and the courts can adapt. What is likely to emerge is something like the Common Law, where tradition gave legitimacy to certain practices and principles. Who will win? Commercial giants like Microsoft and Google? Small developers who make a superior product but who often can’t be successful because they do not have the muscle to compete with the commercial giants? Those who want to share their personal productions with the world? Those who want free access to all the Internet has to offer? Hopefully, the answer is that everyone will wind up a winner, but how this can happen is far from clear.
Dr. Michael Gemignani, an attorney and Episcopal priest, is also a former professor of computer science who has written extensively on legal issues related to computers. Although he is now retired, he enjoys writing and speaking about computer law and security. Contact him at with any questions or comments about this topic.