Computer Law |
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by Al Harrison |
Computer law continues to develop during the middle 1990's primarily through the protections afforded by the Copyright and Patent Statutes. While the focus throughout the 1980's was copyright protection for "look-and-feel" attributes of software as manif est in the layout of display screens and dynamic interaction of users with menus and dialogs contained on these display screens, the focus throughout the 1990's is a combination of copyright and patent protection for rapidly developing technology enabled by powerful chips and related hardware components. While patents will continue to be sought for innovative technologies, copyright protection will address a diversity of audiovisual attributes manifest in multimedia and virtual reality scenarios made av ailable to the user not only from software actually stored on a desktop computer, but also made available to the user through on-line services and, of course, the Internet. The various creative elements typically integrated into multimedia applications a nd the like present a plethora of copyright-related issues that should be timely considered to avoid gratuitously placing proprietary property into the public domain and to avoid inadvertently infringing upon proprietary rights of competitors.
Fundamentally, copyright protects the way in which ideas, methods, and systems are expressed in a tangible form, including textual works such as computer programs and audiovisual works such as display screens. On the Macintosh, DOS, Windows, and UNIX pla tforms, operating-system and application software routinely provide a mechanism for users to interface with the underlying computer programs. Such mechanisms, called "user interfaces" in the vernacular, have generally been granted copyright protection in infringement cases in which competitors were accused of copying a user interface's character: its look-and-feel and behavioral aspects. Court decisions involving copyright infringement of user interfaces balance the copyright owner's right to enjoy the several benefits associated with producing a creative work against a competitor's right to engage in a competitive and open marketplace. Recent decisions in the mid-1990's have focused upon the nature of the user interface functioning as a common, if not essential, vehicle for user interactions with O/S and application programs.
In one decision involving modeling software for analyzing off-shore structures, an appellate court held that user interfaces - from one-dimensional card-image layouts (formerly used on keypunch cards input to mainframes and associated output reports) to conventional multidimensional color-coordinated and sound-effected screen-oriented layouts (currently used inherently with Macintosh and Windows applications) - may exhibit sufficient creativity to merit copyright protection. The court stated that the am ount of protection to be accorded software should be ascertained from assessing whether there is any creative expression manifest in the work, separate from functional and operational expression. In another more recent decision involving the popular Lotu s 1-2-3 spreadsheet, an appellate court held that the inherent menu command structures that characterize user interfaces akin to 1-2-3's interface are actually methods of operation and, accordingly, do not merit copyright protection. That is, since users cannot cause spreadsheet software to function without interacting with the underlying computer program through its predefined user interface, the menu structure of such a user interface is essential to the method of operation. Of course, if this "method of operation" theory stands, i.e., is not reconsidered by the same appellate court or overturned by the United States Supreme Court, then the user community at large should benefit significantly. Such deeming of the underlying structure of user interfac es to be unprotectable by copyright assures users that competitive software will be compatible with de facto standards, thereby mitigating prerequisite user training and promoting user acceptance.
Throughout the 90's software patent procurement is being sought to help secure and sustain market position.
The predatory use of software patents, however, has caused considerable consternation among developers with a ripple effect felt in the United States Patent and Trademark Office.
For example, Compton's NewMedia demanded license fees from developers purportedly using its computer system for multimedia database storage and retrieval. The computer industry at large was outraged and complained that the technology claimed by Compton's had been used by computer professionals several years prior to Compton's filing its patent application. Similarly, Unisys Corporation demanded license fees from developers and on-line service providers purportedly using its technology for compressing gr aphics and pictures for viewing on-line, in the form of GIF and TIF formats. This also caused a backlash in the computer industry because the underlying technologies were considered to be already known by practitioners in the field. In the case of the Co mpton's patent, the Patent and Trademark Office has reexamined the issued patent, on its own volition, and has rejected all of the claims (essentially annihilating any patent rights). In the case of the Unisys patent, current developers using GIF format will undoubtedly change to another royalty-free format. In other scenarios, Microsoft settled patent litigation with Stac Electronics regarding data compression technology and also settled patent litigation with Wang regarding object oriented technology implicating OLE.
Realizing that predatory use of software patents was disrupting free competition in the computer industry, in view of the state of the prior art seemingly frequently being inadequately ascertained during substantive examination of software patent applica tions, the Patent and Trademark Office commenced rejecting many pending software patents on the basis of inventors claiming non-statutory subject matter. This trend, in turn, caused confusion and frustration among developers and their patent counsel beli eving that innovative technologies had been discovered.
Now, this situation has been rectified as a result of recent appellate decisions and by the Patent and Trademark Office issuing guidelines for prosecution of software patent applications: patent examiners have been instructed to hold software patent appl ications to the same statutory standards as any other invention. Thus, to merit patent protection, a software-related invention must meet the three-fold statutory requirements of utility, novelty and unobviousness.
An increasingly important issue facing computer industry service providers is whether on-line service and BBS operators are liable for either enabling unauthorized uploading or actually posting of copyrighted software or defamatory messages or obscene im ages and the like. Recent cases involving on-line services accord liability by considering such factors as the extent, scope and purpose of the service, the practicability of routine policing for uploading of unauthorized software and of potentially defa matory messages, and whether such policing is performed by the on-line service itself or by another service-provider. For example, the duty to screen uploads and messages imposed upon a BBS run by volunteers of a user group, if any, should be insignifica nt compared to the duty imposed upon commercial on-line services such as Prodigy and CompuServe seeking to appeal to users of all ages. Of course, if Sysops and the like engage in behavior which blatantly promotes violating copyrights or recklessly disse minate defamatory messages, then findings of liability should be anticipated.
Al Harrison, a HAL-PC member and past president, practices intellectual property law in Houston, with a concentration in computer law. He was a consultant, trainer and author in the computer industry for several years. He is the chair of the State Bar of Texas Computer Section and chair of the Computer Law Committee of the Intellectual Property Law Section.
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