Copyright and Computers: Law in the Information Age
Because information is becoming a key ingredient to economic security it isimportant to ask, along with Pamela Samuelson, "Have we outgrown theEnlightenment tradition which viewed information sharing as the best means ofincreasing wealth and stimulating innovation?"[1] This question points to a variety of interestingimplications for the information age. No longer, it would seem, is informationsharing an activity which only enhances wealth. The value of sharinginformation rests upon the assumption that a free flow of information isintrinsically positive and should be facilitated because the circulation ofideas encourages new ideas and ultimately benefits the public. Within such aframework, incentives are given to inventors and authors in order to encouragethem to share their ideas. The promotion of the arts and sciences spoken of inthe American Constitution rests upon these assumptions.
Companies today make the opposite claim -- that the free flow of informationis detrimental to their businesses and is in fact a disincentive to furthercreation, research and development. As Shapiro notes, "Sovereignty maintenanceinvolves first and foremost the activity of creating and maintaininginhibitions, of controlling and directing flows of exchange that continuallythreaten extand boundaries and subjectivities."[2] I will argue that the cases discussed in this chapterare acts of sovereignty maintenance by groups who stand to benefit from thecurrent system of exchange. Instead of providing incentives to share,copyright and other forms of intellectual property are used to assert that allcreations are proprietary and can only be used by others at a price. Thisperspective fits well within the copyright law as interpreted in modernity.Shapiro argues that, "a politics of sovereignty is a politics of control oversubjectivities and domains."[3] Thepolitics of sovereignty provide a helpful framework for understanding why thesecases enter the court system. Ultimately, whether win or lose, these cases areabout maintaining a politics of sovereignty.
Step by step the notion of copyright has been expanded until it includespractically any possible use of a creative work. This expansion has occurredprimarily as a mechanism for garnering profits from creative work and as wehave moved further into a market economy based upon information the claims toownership grow fiercer. The courts serve as an excellent window through whichto view the climate of copyright interpretation. As intellectual propertybecomes a more important commodity, proprietary rights are taken moreseriously. This translates into heightened litigation to reaffirm asovereignty system which uses copyright to stake out territory.
What makes these sovereignty maintenance tactics more interesting is that theyhighlight the effect new technology is having on our old ways of constructingproperty rights. When the internet makes the exchange of information easy andpractically uncontrollable, the sovereignty system of copyright has much tofear. In all areas this clash is playing out. The revolution brought about bycomputer technology and the increasing ability to make money off intellectualwork can be seen in a variety of different case areas. Because I am concernedwith copyright, I will look at how technology and litigation are interacting intwo areas: computer software (which exemplifies these trends at many levels)and the publishing industry. There are a variety of other avenues which couldalso be explored including the music industry, the movie industry, and artindustry. However, since the common word in all these areas is 'industry,' andeach industry wants to preserve its territory, I will limit this chapter totwo.
The free flow of information, I would argue, is critical when power andinformation ownership coalesce as they do in the computer age. There is anequally valid reason for exchange today which is not dictated by theEnlightenment tradition -- human freedom and cultural exchange in the face ofan increasingly controlled and dominated world. However, the trend thatrepeatedly becomes clear in the realm of intellectual property is the drawingof larger and larger boundaries around protected materials. The vast majorityof recent court cases dealing with intellectual property move us further fromthe free exchange of information.[4]
In Chapter Two I describe how the discourse of proprietary authorship andoriginal genius in the 18th century affects modern understandings of literaryworks and authorship. As in the 18th century, the modern discourse onintellectual property uses the concept of the individual creative author todefine ownership. As in the 18th century, the author is not the immediatebeneficiary of litigation aimed at protecting authorial rights. The newestarea of copyright law, computer programs, clearly illustrates that, as in the18th century, authors play a secondary role to the owners of copyrights, whileremaining an important justification for such protection.
The law is an important arena where authorship and literary works are definedand the author as a stable category which can claim a proprietary right to abounded work are the unquestioned assumptions underlying the legal cases heardon intellectual property and computer programs. Computer programs, as a newsubject for protection, provide an opportunity to examine the traditionalcopyright story. The drama occurring in the courtrooms is an important threadin the intellectual property discourse underway in the United States today.
COMPUTER PROGRAMS AND THE EXTENSION OF COPYRIGHT
Over the years the Copyright Act has been amended to include music,photographs, films, and most recently computer programs, in the definition of aliterary work.[5] As discussed in thelast chapter, each new incorporation expands the boundary of privately ownedintellectual work. The reports to Congress described in Chapter Threeillustrate how the constantly negotiated boundary between sovereignty andexchange moves in larger circles to limit exchange. Computer programs are thenewest "literary" work protected by copyright and while they are legallyprotected, the extent of this protection has been left to judicial discretion.Including computer software in the Copyright Act and defining it as a literarywork indicates a desire to embrace software within the older tradition ofintellectual property ownership. In the mid-80s, the courts firmlyestablished strong protection for the literal elements of software. Theliteral elements of a program, meaning its programming code, were the mosteasily analogized to print. If you copy a book word for word you plagiarizethe book. If you copy the code of a computer program you have "plagiarized"the computer code. Recent cases have dealt with more ambiguous issues ofownership because software companies are claiming ownership over broader,"non-literal," areas of the program. Non literal elements include the userinterface or particular icons, they are not the code used to construct thesegraphics, but the graphic design themselves.[6] Many software companies claim all aspects of a computerprogram as their private property and argue that other companies making similarproducts are infringing upon copyright.[7]The response to this argument is that creating compatible products is necessaryto be competitive, especially when a specific program has created a marketstandard. The court is used to resolve the conflicts which erupt over wherethe private property line should be drawn.
The litigation undertaken in the software world has serious impacts on how thesoftware market will function. If strict control over "look and feel" isgranted, new innovation is virtually halted.[8] If lax control is granted, firms suggest we will sufferfrom a lack of incentive to innovate because these firms will be unwilling tosupport research and development. The courts serve as a space in which towitness the tension between sovereignty (the traditional story which emphasizescontrol) and exchange (those who criticize overly strict control as detrimentalto innovation).
Because the conflict has not been decided and substantial differences betweenelectronic and print-based documents exist, computer programs can still serveas a site for understanding how the discourse of copyright is used to enhancethe boundaries of property. Case law is an excellent place to turn forevidence to how the copyright story is constructed and resisted because theoppositional nature of the legal system gives voice to many differentperspectives. Additionally, we can watch how the courts arbitrate these issuesand reinforce the assumptions of the proprietary system. Computer softwarepushes the limits of copyright law and while it would appear the copyright lawis subsuming software under its domain, the opposite might be the ultimateresult as software and electronic exchange generally transform the wayknowledge is used and stored.
THE ECONOMY OF COMPUTER PROGRAMS AS PROPERTY
The economic dimension of computer software effects how computer software islegally defined and politically protected. Computer software is awardedcopyright protection because of its economic value and its kinship to otherliterary work. Computer software is likened to the "crown jewels" of theinformation age because it provides the backbone for the burgeoning informationindustry.[9] It is no longercontroversial to claim that the important commodities in today's market areinformation based; information compiled in data bases, information codified ascomputer software, and information collected on most Americans about theirbuying habits, credit rating, medical condition, and much more.[10] The economic importance of software driveslitigation over copyright infringement. The rhetoric of copyright mergesauthor's rights and economic protectionism nicely. As Professor Paul Goldsteinnotes, in a different context, but one appropriate here, these arguments have"a moral surface and an economic core."[11]
While the courts have done much to provide fair protection and fair accessto the market, when the Commission of New Technological uses of CopyrightedWorks (CONTU) recommended computer programs be included as copyrightable worksin 1979 and Congress passed the Computer Software Act of 1980 the balance wasskewed in favor of a specific type of protection. By accepting the generalassumptions of copyright, the groundwork was established for fitting computersoftware into traditional copyright instead of delving into alternativepossibilities for software development. The task of the courts was to ask ifinfringement of copyright in computer programs occurred, not to ask ifcopyright was the appropriate form of protection for computer programs. Thelegal discourse on computer software owes its character to the statutes whichdefine copyright and the inclusion of computer programs under copyright.
As the United States moves towards a service economy, the perception ofneeding to provide protection to the software industry grows. Wendy Gordonnotes, "As the economic hopes of a less confident, service-oriented economyhave become increasingly dependent on the nation's intangible assets,legislatures and courts seem willing to extend intellectual propertyprotections on the questionable, and surely often unconscious, assumption thatprotection means prosperity."[12] Thetension this creates between control and exchange is important for everyoneinvolved in the software industry, and as later chapters will illustrate, toAmerican citizens more generally.
EXTENDING THE TRADITIONAL STORY TO COMPUTER PROGRAMS
Computer programs were not always economically important. When the computerindustry was in its infancy, and computer programming was done for fun,programs were considered a freely shared asset.[13] Typically, a computer programmer would add his/her ownpersonal touch and continue to use it, share it, and improve it. Computer codeauthors kept efficient code and rewrote inefficient code. Thus, sharingwritten code was an important (and remains an important) aspect of softwarewriting. As the industry developed, a great effort was made to move computerprograms under the clear protection of copyright law and out of the realm ofcollective innovation. The introduction of profits into the software worldtransformed the way computer programs were written by making computer codeproprietary and unavailable for sharing.
Strong protection of computer software begins with arguments which extendauthorship and original genius to the creation of computer software. In orderto establish a justification for allowing computer software to be copyrighted,those seeking strong protection needed to use the tropes of the traditionalcopyright story to make the analogy between traditional literary works andcomputer programs as close as possible. In effect, a new rhetorical communitywas created whose adherents said computer programs were literary works andcomputer programmers were inspired authors.
Anthony Lawrence Clapes, Assistant General Counsel at IBM, in his bookSoftwars: The Legal Battles for Control of the Global Software Industryclearly illustrates how the argument for strong protection begins. He reliesheavily upon the romantic notion of the original genius in order to explain whysoftware deserves protection as a literary work. Clapes collected quotationsfrom a variety of Computer Scientists and software programmers to make thispoint. For example, Professor Frederick T. Brooks states that, "Theprogrammer, like the poet, works only slightly removed from pure thought-stuff.He builds his castles in the air, from air, creating by exertion of theimagination. Few media of creation are so flexible, so easy to polish andrework, so readily capable of realizing grand conceptual structures." Clapes sums up the creative aspect of software as follows: Almost pure thought-stuff. Castles in air. Gratifies creative longings.The ultimate creative medium. A tangible forms of dreams and imagination.Magic and mystery. Simplicity and elegance. So beautiful you could hang it onthe wall. Trying to create a perceptual impression. A combination of both artand science. A lot of subconscious activity. The best software comes from therealm of intuition. That is the kind of property we call computerprograms. (emphasis in the original)[15] In the space of a few short pages Clapes likens computer software writing tothe essence of the creative process. He then goes on to depict the type ofperson who creates such beautiful things. Noting that good programmers are often compared to artists and musicians,Patricia Keefe of Computerworld describes the task of managing these"often unconventional or egocentric types" as posing unique challenges. Shequotes one software manager as saying that "People program because they lovethe intellectual challenge," and another manager as observing that becauseprogramming is a creative process, people tend to be more possessive of theirwork. A third suggested that programmers need a greater degree of freedom thanother employees in order to "look around and explore different ideas." A goodprogrammer," the president of a small software company told Keefe, "isdefinitely a prima donna."[16] When described in this manner, it is obvious that the creative act of computersoftware writing is as deserving of copyright protection as any other literarycreation.[17] Obviously, writing software is an incredibly creative activity. I alsobelieve it is possible and desirable to assign authorship in software.However, Clapes ignores two important points. First, he constructs a narrativewhich centers the creative aspect of the individual programmer and neglects theutilitarian function of the program which necessitates the re-use of efficientcode. Code may be used by people other than the author. This exchange of codedisrupts the traditional boundary of copyright which relies upon carefullydelineated boundaries between owners of property. Second, he obscures the rolehuge companies like IBM, his employer, play in the ownership of copyright.Ownership of copyright usually rests with the company for which a programmerworks. The myth of the romantic author conceals the political economy ofsoftware production and design. Generally, the trend is towards increased protection of copyrightabletechnology.[18] The most radicalprotections have already been unproblematically accepted -- the transformationof computer programs from exchangeable, free tools to economically importantcreative products. Treating computer programs as commodities is madelegitimate through legal battles that reinforce the traditional copyrightstory. Even exchange-oriented decisions operate under the assumption thatcomputer programs are property.[19] TheSupreme Court has made no definitive decisions yet and each circuit court hasdealt with the issue differently. With the Supreme Court agreeing to hear itsfirst intellectual property case related to software this year, much of theuncertainty in current case law may soon be eliminated. THE SOVEREIGNTY IMPULSE, COMPUTER PROGRAMS AND THE COURTS The courts found property rights in the fundamental aspects of computerprograms soon after the 1980 Computer Software Protection Act was signed. PROGRAMS AS LITERARY CREATIONS AND THE IDEA/EXPRESSION DICHOTOMY Apple Computer, Inc. v. Franklin Computer Corp. provides us with aview of how computer programs were first incorporated under copyrightprotection.[25] In Apple, FranklinComputer Corp., a small computer company that manufactured "Macintoshcompatible" computers, was charged with violating copyright on 14 differentprograms written by Apple. Franklin's computers, Apple argued, used exactcopies of Apple software, with only minor changes such as the elimination ofthe copyright warnings and author's names. Apple claimed, and Franklin neverdenied, that their software was copied. Apple said they could prove authorshipbecause the software writer's name was embedded in the programs in question andhad not been removed by Franklin. Franklin argued it was necessary to copy the code from Apple in order to builda 100 percent compatible machine. Unless 100% compatibility was achieved, theFranklin product would not be marketable. Franklin's argument hinged on thenotion that there was only one way of expressing the desired idea. The courtreversed a lower court's decision in favor of Franklin and extended "copyrightprotection to all forms of software."[26]The court affirmed that computer programs are "literary works" under theCopyright Act of 1976.[27] In this case,the literary work and its relationship to authorship and creativity helpedprotect the first to enter the market, much like copyright protected the Londonbooksellers in the 18th century. Again, a certain level of sovereignty isembraced by the courts as they (logically) allow Apple to own the computer codein their operating system. Like the London booksellers, this case illustrates the underlying tensionbetween a large company with a virtual monopoly over a certain expression of anidea and a smaller company wishing to produce a similar product. Furthermore,while the work is defined as literary, the flesh and blood author isinvisible.[28] Literal code is protected according to the Apple v. Franklin decision.Because Franklin admitted copying the code directly, issues of non-literalcharacteristics of computer programs were not discussed. However, the allpervading idea vs. expression dichotomy was relevant. Franklin claimed a needto copy the programs to ensure compatibility. Apple countered, arguingprograms aimed at performing the same function could have been written byFranklin, but they found copying easier. The court decided it lackedsufficient evidence to decide the idea/expression issue.[29] Because the issue of a limited number of ways toarrange computer operating systems was considered irrelevant, Franklin lost.This argument must be addressed at some point, however, because as manysoftware writers know, the utilitarian function of computer code is such thatit is inefficient to rewrite code simply because a certain "phrase" has alreadybeen used. In the computer world, if a line of code works and is better thanany other way of expressing the same idea then it will be reused, notrewritten. Apple helps legitimate that first creators can monopolize the codethey create. While copying an entire operating system line by line may seemfairly illegitimate, the question does arise -- at what point has too muchcopying occurred? What is a legitimate amount of exchange? Too tightlycontrolling code halts the exchange process that has played a significant rolein the development of the software industry. Too much exchange makes itdifficult for the software companies to maintain a competitive edge. Theidea/expression dichotomy is an important concept that must be carefullywatched as it is applied to computer programs.[30] The level of abstraction used as a dividing linebetween idea and expression is a result of the sovereignty/exchange tension.If assigned too high, sovereignty prevails, if too low, exchange. MOVING BEYOND LITERAL ELEMENTS TO THE NON-LITERAL The 1978 ruling Synercom Technology, Inc. v. University Computing Co. In Whelan, the computer program structure was the programmers' "idea."The court made several logical moves to reach this decision. First, it equatedthe utilitarian function of the computer program with the idea. This meantanything unnecessary for the utilitarian function of the program was expressionand therefore copyrightable.[34] Second,if the expressive part of a computer program, which is copyrightable, iscopied, there is infringement. For example, my idea is to write a program thatwill balance my monthly checkbook. The idea, according to Whelan, isthe utilitarian objective of writing a program to balance my checkbook.Everything else is expression. The Whelan decision strongly protectscomputer programs. As David Ladd and Bruce Joseph note, Under Whelan's broad rule, it may be impermissible to take anything(short of the same function) from another work. As a result, special cautionis necessary to ensure that employees who have left competitors are not usingprogram expression gained from their prior employer's work.[35] The strict ruling does little to foster exchange and derivative works. Justice Learned Hand in Nichols v. Universal Pictures Corp., Upon any work, and especially upon a play, a great number of patterns ofincreasing generality will fit equally well, as more and more of the incidentis left out. The last may perhaps be no more than the most general statementof what the play is about, and at times might consist only of its title; butthere is a point in this series of abstractions where they are no longerprotected, since otherwise the playwright could prevent the use of his "ideas,"to which, apart from their expression, his property is never extended. Nobodyhas ever been able to fix that boundary, and nobody ever can. (emphasismine)[37] The result of the Nichols decision is the "series of abstraction" testwhich is used for computer programs as well as literary works. While recognizing that the arbitrary distinction between ideas and expressionwas prone to collapsing upon itself, Learned Hand suggested the court look atlevels of abstraction. At certain levels, infringement would be obvious. Lessprotection is granted at each new level of abstraction until the expressionmerged with the general idea. Learned Hand recognized the ambiguous nature ofthe boundary between ideas and expression. He recognized the court was engagedin a balancing act between two powerful tensions. However, the Third CircuitCourt in Whelan fixed the boundary between ideas and expression forcomputer programs. They fixed it at a high level of abstraction -- thefunction of the program is the idea. Lotus Development Corp. v. Paperback Software International Whelan and Lotus keep the courts busy with copyrightinfringement cases dealing with substantial similarity. While copyright ownersdo not always win their arguments, the recent battles between the computergiants Microsoft, Apple, and Hewelett-Packard indicate enough money is on theline to continue pursuing litigation. Additionally, the Ninth Circuit recentlyruled in Ashton-Tate Corp. v. Ross that the command structure of aspreadsheet was not expressive enough to be protected.[42] This decision provides room for exchange to creep backinto the courtroom and provides computer software writers with reason to beginusing ideas from other software which in turn sparks more battles overinfringement. Because the Supreme Court has not rendered a decision on thecopyrightability of computer programs (only denying cert. to Whelan)there are no clear tests for the lower courts to follow. This might soonchange. The Supreme Court has agreed to hear Lotus Development Corporationv. Borland International Inc.[43]During December of 1995 briefs will be filed.[44] This decision will be important for the future ofcopyright and computer software, especially as it relates to "look and feel"issues. The Lotus case will give us a better indication of how much of acomputer program can be copied. This litigation is about the extent to which"textual poaching" will be allowed. As one could guess, authorship is buriedin the morass of corporate ownership. While the general tendency is towards increased control, some decisions, whileillustrating the sovereignty impulses of the companies in question, tend to bebalanced in their approach to strict copyright protection in computer programs.The courts produce rules which must be followed and provide the stage uponwhich the tension between sovereignty and exchange occurs. This is not to saythat the legal system is neutral by any means. However, there is room forexchange discourse to creep into the courtrooms. Were the sovereignty impulseis the strongest is the firmly established computer programming corporationswho have the clout and the money to aggressively pursue intellectual propertylawsuits in order to remain dominant. Through them public policy and law isinfluenced as they lobby for better treatment. These laws, then, areinterpreted by the courts. Thus, the system is not a neutral one, the sourceof power is merely dispersed and not easily singled out. The recent Apple litigation is an example of the continuation of thesovereignty impulse. Apple accused Microsoft and Hewelett-Packard of copyingthe "look and feel" of the Macintosh interface when creating their owngraphical interfaces (Microsoft's windows, and Hewlett-Packard's "New WaveOffice"). Apple documented over one hundred and fifty alleged similaritiesbetween the products, concluding that the "look and feel" of their userinterface was infringed.[45] Xerox thenaccused Apple of copying the idea from them in the first place.[46] Of the 150 infringing items outlined by Apple, the court narrowed the possibleinfringing items down to five falling under the "virtually identical" standardand another four falling under the "substantially similar" standard. Strictly construed, all aspects of the computer program would be protected --the literal code and the more general "look and feel." As Apple's defensenoted, I don't want to end up with this case saying, "Oh, well, all we have to do ischange a trash can or change this or that." That isn't what this case isinvolving. We didn't bring a small case; we brought a case of tremendoussignificance to the client and to the industry. It's virtually the mostimportant -- certainly the most important case I have ever tried -- but it'simportant because of the impact, the importance of this intellectual propertyasset of Apple's that they created and they owned and the totality of thatexpression.[48] Computer companies like Apple are attempting to define infringement broadly.Apple's unsuccessful litigation is about much more than the substantialsimilarity of a trash can icon. Apple illustrates how even large computer companies build upon whatothers have done. The commodification of the programs, however, leads thesesame companies to quickly forget the roots of their own programs in favor oftightly protecting their ownership rights. The courts do not always protectthe tightly controlled ownership rights of the large computer companies. Computer Associates International, Inc., v. Altai, Inc.[50] also deals with non-literal aspects of a computerprogram. Claude F. Arney, III, an employee of Computer Associates (CA), wasapproached by James P. Williams (President of Altai) about working at Altai.When Arney accepted, he brought information about computer programs underdevelopment and marketed by CA with him (unbeknownst to Williams). Theseincluded a program called CA-SCHEDULER and ADAPTER. CA-SCHEDULER scheduledtasks running on a large mainframe. ADAPTER was a sub-program which acted as atranslator for different operating systems. In 1982 Altai began marketing its own scheduler titled ZEKE. Shortly aftercoming to work for Altai, Williams and Arney discussed the possibility ofwriting an adapter program for ZEKE. Arney went to work on a program calledOSCAR using the code from Computer Associates, unbeknownst to Williams or otherAltai employees. Upon hearing its code was used in creating OSCAR, ComputerAssociates obtained copyrights of the code and filed suit against Altai. Once Altai learned OSCAR was the product of copied code from ComputerAssociates they began to rewrite it. Altai put together a team of programmerswith no prior knowledge of OSCAR or the CA program, and had them rewrite OSCARfrom the ground up, something called the "clean room" technique. Altai thenmarketed this new program as an updated version and sent free upgrades to allcustomers already owning the first version. The court decided, and Altai did not contest, that their first programinfringed upon CA's copyright. However, the rewritten version of OSCAR, Altaiargued, was not subject to infringement because it was a completely newprogram. The court agreed. The court's argument about the idea/expressiondichotomy departs quite drastically from the Whelan decision. Thecourt agreed that protection of ideas under Whelan was overbroad. The implications of this case for the industry may be short lived if theSupreme Court decides that the non-literal elements of a computer program arecopyrightable. The court recognized that copyright is not "ideally suited todeal with the highly dynamic technology of computer science."[52] This decision also takes into consideration themonopolistic tendencies of larger companies in the computer industry. Courtshave remained quiet on whether protection or lack of protection hinders theindustry. Fortunately, Altai leaves room for maneuverability andmarket competition. The Altai case was "violently opposed by a lot ofthe larger companies who are interested in broadly extending copyrightprotection to limit competition."[53] REVERSE ENGINEERING AND THE FREEDOM OF IDEAS While Altai fosters exchange, other recent controversies and courtdecisions entrench sovereignty. Reverse engineering is the process of goingbackwards from a finished product to determine how it was created. It is aproblem more often associated with patent law where inventions are in question.However, because the object code of a computer program is not immediatelyvisible or understandable, reverse engineering is also used to understand how acomputer program works. Usually a licensing agreement prohibits the buyer fromreverse engineering the software to discover the source and object code. where disassembly is the only way to gain access to the ideas and functionalelements embodied in a copyrighted computer program and where there is alegitimate reason for seeking such access, disassembly is a fair use of thecopyrighted work, as a matter of law. Our conclusion does not, of course,insulate Accolade from a claim of copyright infringement with respect to itsfinished products."[56] While the appeals court seemed willing to let this matter work itself out,this issue remains problematic. Litman states that decompiling a program isequivalent to translating a book from Japanese to English.[57] However, others argue the source code is a trade secretand thus protectable.[58] Decompilation of a program does not result in a duplicate of the originalprogram. However, it does allow the new programmer to investigate the ideas,processes, and logic of the first program -- items which are notcopyrightable.[59] It can also result, asSega shows, in a compatible program or game.[60] We run into a classic clash between sovereignty andexchange. Computer companies want to tightly control what they see as their property.Because computer code is unreadable, this property extends past the expressionto the ideas, processes, and logic itself (traditionally public goods). It iseasy to maintain control over these ideas absent a decompiler. Some assert atrade secret right to computer code. Once another company decompiles the code,a second product can be built using the same ideas and logic of the first. Thesecond product will be written with different source and object code, but willrely upon the first product for its idea. Another cause for concern from the software industry is the fact that computersoftware is so easily loaned and transferred without losing the original copy.Unlike a book, which can be legally resold or given away, computer software canbe given away and remain with the original buyer. Because all softwareis a copy, it is virtually impossible to protect the sovereignty of theproduct. Computer companies market software under "shrinkwrap" agreementswhich prohibit the buyer from loaning, leasing, or transferring the software.However, there is nothing stopping a customer from violating this agreement andno way to enforce it. What is at stake is both market competition and the process of creativity.Absent the ability to compete at the same level with similar products, there isno competition in the computer program market. It is ironic that companiesdedicated to a free market system so willingly embrace monopoly when theybenefit. As software activist Mitchell Kapor notes, "too many companies seemto have decided it is easier to sue their rivals than compete with them." Gary R. Ignatin writes, "Copyright law, while protecting the rights ofauthors, allows others freely to study and analyze their works, so that furtheradvances can be made in their field."[62]In opposition to this perspective, Clapes, the lawyer for IBM, states, Their (people who support reverse engineering) assertion is that the purpose ofcopyright is to cause dissemination of ideas, and that if programs arepublished only as unreadable object code and translation is prohibited, theideas in the program are not disseminated. That assertion is fundamentallywrong on all counts. The purpose of copyright is to encourage publication oforiginal work. More specifically, in the United States, the purpose ofcopyright is to promote progress in science and the useful arts. While Thomas Jefferson might disagree with IBM's lawyer, the money and powerfavor strong protection despite the original intent. Clapes goes on to saythere are numerous methods for evaluating a program that do not infringe oncopyright protection. Reverse engineering is not one of them. These positions illustrate an important point. The economics of the situationcannot be separated from the politics. Clapes refuses to endorse sharingbecause the market system is about competition, not cooperation. Ignathinendorses reverse engineering because he understands the hardships of creatingcompatible software and the need to provide a useful product for the public.Ignathin argues, "It would be ridiculous for an author to stipulate that hisbook could not be studied, or for a painter to stipulate that his paintingcould not be analyzed. Software manufacturers, however, routinely use"shrink-wrap" licenses to contractually prevent any unauthorized study ordecompilation of their programs."[64]Ignatin identifies that commercial advantage has taken precedence over progressin ideas. The focus on computer software as a work of authorship and creative geniushelps obscure that software is a technology. As Ignatin notes, While overprotecting a novella will likely have little effect upon the field ofliterature as a whole, overprotecting a crucial advancement in technology couldseriously hamper future innovation in the industry...Restricting innovation inthe software industry is especially troubling because software is used soextensively in the development of technology in other industries. Computershave been essential to recent advances in biotechnology, communications,transportation, manufacturing, and virtually every other field of study.Improperly protecting computer programs will thus have ramifications far beyondthe perimeters of the software industry.[65] Computer software offers compelling evidence that exchange, while meaning adissolution to strictly controlled property, may benefit the public good farbetter than private property does. One final case illustrates the tensions between sovereignty and exchange inrelation to computer software. The controversy over quoting unpublishedmaterial is a clear example of an increasing desire to assert ownership overinformation and computer code. In 1991, the U.S. Court of Appeals in New Yorkruled that nonfiction authors could no longer quote extracts from unpublishedsources (even small extracts).[66] Whilemost historians were appalled, there was strong support from the computerindustry. The computer industry sees the ability to quote limited amounts ofunpublished material as a threat to their ability to control software: When the authors say they want legislation to provide them once again withlimited access to unpublished works "in order to clarify or demonstrate thevalidity of their own assertions," the computer people shudder. "That meansthey can use snippets," says Mr. Lehman. A "snippet" may be "fair use" ofunpublished material to an author, but a snippet taken from an unpublishedsoftware program under fair-use doctrine could be enough to "decompile" theentire program. "They are talking about our crown jewels," says Mr. Lehman."We take this very seriously."[67] As Ingrid Voorhees, chief lobbyist for the Computer and Business ManufacturersAssociation says," "We like the current law, and we are concerned that wecould be damaged by legislation aimed at protecting the authors." The courts are playing a critical role in the way property in new technologiesis defined. Additionally, via copyright, they are directing the development ofthe software industry. The prevailing tendency is to clearly define programsas literary objects and assign ownership of the literal code while remainingambivalent about the "look and feel" issue. Stifling new programs andcompetition is a very real threat. The language of copyright has implications for the way we think and relate toall forms of creative work. The internet adds a new dimension to the strugglebetween sovereignty and exchange, as illustrated by copyright. Once acopyrighted work is uploaded to the internet, the ability to control it isreduced to almost zero. The software industry is doing its best to go after"software pirates" who exchange copyrighted works via the internet. PUBLICATIONS AND THE INTERNET The Church of Scientology takes great care ensuring that the writings of L.Ron Hubbard are kept secret from everyone but those "ready" to hear what theyhave to impart. As one moves higher in the church organization, more of thewritings are revealed. These secret texts, which are, according toscientologists, copyrighted and trademarked, made their way onto the internetthrough the work of several scientologists turned critics. Once on theinternet these documents became impossible to control. The information movedfreely from one cite to another. The Scientologists do not want this type ofuncontrolled exchange of private church documents. In fact, when one of theirprivate documents became part of the public record, known as the Fishmanaffidavit, the church sent members to the United States District Court for theCentral District of California to check out the document each day to ensure noone other than church members could read it.[70] In order to further control the boundaries of theirproprietary work, the Church has someone scan the internet watching forpotential violations of their copyrights.[71] Once a potential infringer is identified, they areasked to stop their infringing behavior. The Church also files copyright andtrade secret suits against the potential infringers. The Religious Technology Center (RTC) cases are interesting because the Churchdoes more than sue the person who uploads the copyrighted works. They includethe internet provider in their litigation net.[72] These cases help develop a standard of liability forbulletin board operators when their computers are used to exchange copyrightedwork. In Playboy v. Frena (1993)[73] it was found that a bulletin board operator may bedirectly liable for distributing or displaying public copies of protectedworks. In Sega Enterprises Ltd. v. Maphia (1994)[74] it was established that an unauthorized copy is madewhen it is uploaded to a bulletin board. While it would seem that a precedentof sorts has been established for copyrighted work displayed over the internet,both these cases differ from the RTC case in that the bulletin board operatorswere involved either directly or indirectly[75] in soliciting the copyrighted materials, while in theRTC litigation the material in question was merely added to a discussion listas part of thousands of other notes. The Scientologists take their copyrightclaim very seriously and also sued The Washington Post for writing anarticle on the controversy and quoting from what they claimed were copyrightedworks.[76] These cases are also interesting because they illustrate the lengths RTC willgo to in order to protect their copyrighted information. Fortunately, thecourt found the Washington Post was within the scope of fair use when it quotedfrom what was then a publicly available document.[77] In other litigation, the court found that theinformation services were not direct infringers by allowing for thiscopyrighted information to exist on their computers, but the defendants will goto trial to decide the issue of contributory infringement.[78] If RTC is to succeed on the claim of contributoryinfringement, it could be interpreted to mean on-line companies will alwayshave to err on the side of copyright claims (even where one may not exist) inorder to ensure they are not brought to court as contributory infringers. Thiswill mean a more guarded level of discussion because fear of violating theproprietary rights of others will be an inherent part of the discourse. This litigation should not, however, be understood as a victory by copyrightowners over critical debate and discussion, or even as decisions which willsolidify a strong version of copyright into the next century. It is true thatthe court will continue to remain faithful to the statutory requirements ofcopyright law and individuals caught violating copyright will be punished.However, their interpretations of the liability of bulletin board owners differsubstantially from the recommendations of the Intellectual Property Task Forcediscussed in the last chapter. While the policy recommendations were toenforce a strict liability in all copyright matters, the court in RTC v.Netcom introduced two standards of liability. If the BBS owner directlyencourages the uploading of copyrighted information (as in Sega) it is acase of strict liability. If the uploading happens on a BBS in the course of adialogue, the BBS owner cannot be held liable.[79] The court wrote, The court does not find workable a theory of infringement that would hold theentire Internet liable for activities that cannot reasonably be deterred.Billions of bits of data flow through the internet and are necessarily storedon servers throughout the network and it is thus practically impossible toscreen out infringing bits from noninfringing bits.[80] The understanding of how information is exchanged on the internet has helpedpromote a less virulent form of control than that suggested by Congress. Thesecases serve to illustrate the types of claims being made by copyright holderswho find their works exchanged outside their control via the internet. While the RTC cases leave room for exchange, especially when it can be linkedto criticism and fair use, other cases have set strict liability standards forindividuals uploading information or controlling BBS' with proprietaryinformation. In fact, Playboy successfully argued that Frena's bulletin boardconstituted "unfair competition" by providing copyrighted adult photos forfree. The court reasoned that if this activity were to be reproduced all overthe internet Playboy would lose money.[81]Frena and his several hundred subscribers were used as examples of what willhappen if copyrights are infringed, thus ensuring Playboy could continue tobenefit from its many thousands of pornographic. Much of this litigation is about making examples of infringers in order tocontrol how proprietary work is used. Playboy, an enormous multi-milliondollar company, would be hard pressed to show any real harm. Instead, it isquickly turning to litigation to ensure that future infringers think twicebefore exchanging proprietary photos. The potential for a lawsuit is a strongincentive to be careful of what is uploaded or downloaded from your server. The courts provide the stage where these dramas are enacted and providejudgments that, while leaving room for flexibility, always adhere to copyrightlaw and punish copyright infringers. These cases are made more complex bytheir interactions with censorship of obscene materials, First Amendmentclaims, and the desire to exchange information. As technology intersects withthe products of the publication industry these stories will become morenumerous. Generally, copyright infringers should beware -- the courts willprotect publishers and authors from unauthorized use. Of course, while theinitial upload can often be traced, the paths of copyrighted material, once itenters the internet is another matter. Despite litigation, exchange willcontinue, most likely unabated. Owning facts is another important aspect of the information age. As basicfacts about individuals becomes economically important the ownership of thisdata becomes an issue for the courts to decide. The Supreme Court has rendereda decision on the ability to own this type of information, and the level ofcreativity required. ORIGINALITY IN DATABASES, OR THE LACK THEREOF Originality has been a defining principle of copyright law since itsinception. Originality is what makes a literary work unique from others, it iswhat defines it as an independent creation. While originality is the norm,other works which involve a significant amount of labor have also receivedcopyright protection. Thus, two standards for copyright are possible. Thefirst is an original creation, the second is a work which is produced by the"sweat of the brow." Both involve authorial rights, the strongest of which aregiven to the original work. The decision of Feist Publications, Inc. v.Rural Telephone Service Co., Inc.,[82]brings the discourse on originality into the technological age. This decisiontouches on the possibility of copyright in databases and illuminates howimportant originality continues to be in our society. Databases have been a growth industry since the computer made it easy andefficient to store and retrieve information. Typically, data-base informationis a reproduction of available "facts," such as names, addresses, and phonenumbers. Databases are used to organize these facts into useful categories.While copyright explicitly rejects ownership of "facts," an originalpresentation of the facts can be copyrighted, thus making computer databasesprotected by copyright law. Because databases can be a source of immenserevenue, one might expect them to be strictly controlled. However, in a recentcourt case dealing with the copyrightability of the white pages, the SupremeCourt ruled that there was not sufficient originality for the white pages toconstitute a creative work. In this case, Rural accused Feist of copying their white page listings withoutpermission. Feist's actions could be proven because their phone book includeddummy numbers Rural added to protect itself from just such a case. Even thoughRural could prove Feist copied the numbers instead of researching their own,the Supreme Court ruled there was no copyright infringement. Justice O'Connordelivered the opinion in which the court found that Rural's white pages werenot sufficiently original to be copyrightable. Thus, copying the phone numbersdirectly from Rural's phone book was not a violation of copyright. By allowingthis action to be legitimate, Feist overturns the "sweat of the brow"standard for copyright.[83] On the surface, the Feist decision appears to allow for substantialexchange of information. This would include consumer information data-baseswhich take hard work to compile, but are low on creativity. While the computerindustry was concerned about this decision, Feist will most likely notaffect computer related data. As Robert Gorman notes, computer databases likeWestlaw or Lexis meet the minimum requirement of creativity and are eligiblefor copyright protection. To ensure copyright protection of primarilydata-base information, one must include "value-added" material such ascommentary and rankings.[84] This case turns on the degree to which a compilation of facts can becopyrighted. In doing so, the court applied an originality test to thearrangement of the material. The court defines originality as: To qualify for copyright protection, a work must be original to the author,Original, as the term is used in copyright, means only that the work wasindependently created by the author (as opposed to copied from other works),and that it possesses at least some minimal degree of creativity. To be sure,the requisite level of creativity is extremely low; even a slight amount willsuffice...[85] Originality in this context has two implications which provide for betterownership of ideas. First, it defines the author as the independent creator ofthe work. Thus, a clear boundary between authors and texts can be established,even in the realm of facts. The court assumes an individual can createsomething that does not rely upon the cultural context -- something original.The implication is that texts take on a bounded identity and that anysubstantially similar work must infringe.[86] Second, the court relies on a standard of creativitywhich compares differences between works. A new work must be substantiallydifferent from the previous one to avoid infringement. This concept is called"legal originality."[87] Legaloriginality combined with the standard that an original work must be derivedfrom the creative expression of an author is crucial in establishing thedistinction between cultural works. Making distinctions is crucial to owningcreative work. Thus, in the sovereignty impulse also works through this notionof legal originality. CONCLUSION I tell the legal story because it depicts an approach by which the softwareindustry and other copyright owners attempt to extend sovereignty over the newrealm of exchange -- electronic information. The outcome is a clearunderstanding of computer programs as intellectual property, the emergence of"legitimate" and "illegitimate" ownership of this type of property, andultimately the construction of villains who prey on "helpless" owners ofcopyrights. Authors remain invisible. In the case of the software industry,authors have no voice. In the case of the Scientologists, the voice of L. RonHubbard has been replaced by an industry which constitutes his religion. The legal discourse helps reconstruct the traditional copyright story for useon the internet and incorporate computer software under the rubric ofownership. What is packaged for the American people is a notion ofintellectual property rights that is solid and permanent. Court cases helpprovide that solidity by establishing strong precedents which are followed. Asthis chapter shows, the courts have not solidly protected copyright. However,never do the courts question the applicability of copyright or property law.Copyright is a commonly accepted myth legitimized through the legal system.