Strange Odyssey of Software Interfaces and Intellectual Property Law, The

Intellectual Property and Copyright and Trademark

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Pamela Samuelson


In "Making and Unmaking Intellectual Property"; Mario Biagioli, Peter Jaszi, and Martha Woodmansee, eds., 2009


This chapter surveys how the law has protected software developers from copying.

Policy Relevance

Courts should give rivals some leeway to copy the parts of software programs that enable it to work with other programs, to protect competition.

Main Points

  • The “interface” of a software program is the portion that enables it to work with other programs, the way that the two-sprocket design of an electrical outlet accepts a standard plug.

  • When computer programs came into widespread use, the interface designs were often published. Later, IBM realized that keeping control of how to make the programs work gave it an advantage over rivals, and protected the interfaces as trade secrets.

  • In early cases such as that involving Altai (computer system software) and Sega (computer games), the courts denied copyright protection to aspects of a software program such as interfaces that were:
    • Dictated by efficiency;
    • Dictated by external factors, such as the demands of the industry being served or the need to operate with other programs;
    • Already in the public domain, such as known programming methods.

  • Eventually, courts provided patent protection for software. Patent protection for interfaces lets program developers control which programs work together and exclude rivals.

  • Some observers support restricting interface patents, or requiring that they be licensed royalty free, to support software competition. Some oppose software patents entirely.

  • The legal treatment of software has changed drastically over the years.

  • Some support creating a new kind of intellectual property protection just for software, a “sui generis” regime, because it does not fit well with either copyright or patents.

  • Giving software interfaces copyright protection would create problems with competition and innovation, and the Altai court reached the right result.

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