The individuals responsible for producing software are protective of their monetary investment and time commitment. The recent advances in computer technology have caused much concern over the protection of this intellectual property. Indeed, the U.S. Constitution is aware of the problems of the protection of new technology:
When a new technology impinges upon the intellectual property system, questions arise concerning both the scope and appropriateness of its protection and the effectiveness of the system in promoting "the Progress of Science and useful Arts."
Historically, computer software hasn't fit as neatly into the traditional intellectual property framework as computer hardware. Most property protection for software has come from copyright and trade secret laws, with some additional patent law protection. Recently, though, there has been a continual dialog trying to decide exactly what should and shouldn't be protected and what is or is not protected (currently). In the mid-1970's, Congress mandated the National Commission on New Technological Uses of Copyrighted Works (CONTU) to consider how best to treat software. CONTU's recommendation was to extend explicit copyright protection to software, which was reflected in the 1980 amendments to the Copyright Act. As the software industry has grown, there have been an increasing number of patent applications for software-related inventions. These include certain patentable processes, algorithms, etc. Copyright and patent lawsuits are continually testing the extent of software protection boundaries. Some of the most important legal battles of the personal computer industry have dealt with the most important aspect of computer programming - the user interface.
Computer users can interact with a computer on two levels - through the operating system and through an individual program. The DOS operating system is often seen as cryptic and archaic, allowing for very little "user-friendly" human interfacing, leaving the bulk of the design elements to the imagination of the programmer. Source code, the written work, is not an issue. In fact, this statement describing an Apple Computer vs. Microsoft lawsuit illustrates some of the problems involved in this type of litigation.
...nobody was claiming there had been any filching of actual code. This was a whole new realm of the law, where the precedents had more to do with the design of stuffed toys, jewelry, and clown costumes than with computers.
Two lawsuits in 1987 provided ground-breaking court decisions that would decide how far a company could go in copying a user interface for a program.
These two lawsuits, along with hundreds of smaller ones, have forced the issue of determining the scope of copyright beyond the literal written expression - the actual program code - to the program's design and underlying logic. At stake in these decisions is the extent to which copyright (in concert with trade secret law) should be interpreted to give protection to the functionality of the program as opposed to the program code. It is evident that computer programs, however literary, creative or intelligent, do not fit neatly into the traditional forms of intellectual property. Currently, under the U.S. intellectual property system, there are three types of legal protection for software development, each affording the developer unique benefits and each with it's own set of problems: design patents, trade secret laws, and copyright laws.
As the copyright and patent lawsuits continue to explore the boundaries of the current laws, there is a feeling among members of the computer industry and legal profession that copyright and patent law, if properly applied, adequately protect software. Pushing for laws specifically related to software would, in the opinion of some of the members of this group, lack the predictability provided by legal precedent as well as damage international protection. Others feel that the development of software-specific laws are preferable to forcing computer software to fit a model originally suited to a different type of work. The debate focuses on the two questions of the desirability of patent/patent-like protection for software and the effectiveness of the patent office as it currently exists for software protection.
