| Technological change has always posed a challenge to copyright law. The origin of intellectual property law was, in part, a response to the technological challenges that the printing press raised. The evolution of computer software poses similar challenges to copyright law today. In the early days of computing when vacuum-tube powered computers filled entire rooms and every software program was a specialty application, copyright protection of those programs was not a big issue. Over time, though, this changed. Technological advances, in the form of increased computing power, and the availability of that increased power to the public, have again strained the current bounds of the law. Questions about the proper role of copyright protection in computer software have existed for some time. One crucial case was Lotus v. Borland, which involved issues of standardization and interoperability and the threshold of infringement when such elements are present. The Supreme Court's 1996 decision in the case did little to clarify the current doctrine on copyright law and computer software. Very little literature and even fewer court decisions have addressed these issues. This research will use a legal analysis to assess the role of standardization and interoperability in copyright protection of computer software. It will attempt to answer the question of how much copyright protection computer software should receive when elements of standardization and interoperability are present. The scheme under which that protection is currently provided will also be examined. The dissertation will begin with an examination of the economic theories that underlie copyright law. Then, it will use economic literature to explore the issues and theories involved in technical standards and interoperability. After reviewing the history of copyright law as it relates to computer software, the research will examine some possible solutions to the dilemma, including sui generis schemes and fair use. The research proposes and defines a privileged use for cases involving standardization and interoperability. |
