Friday, September 2, 2011

Copyright Is The New Patent: How to Protect Your Software, Again

Back in the day (the early '90s), copyright law was viewed as the best way to protect software from piracy. There was a ton of cases that tried to establish some rules, rooted in copyright law, to protect the “look and feel” of software.* The purpose was to extend copyright protection to more than just someone’s source code and to provide meaningful protection for the labors of software developers.
The big push toward stronger software copyright protection was sidelined around 1995 when patent law gained acceptance as the superior protection mechanism. In re Beauregard is often cited as the case that started it all. Then, for about the next decade, patent law was the software protection king, resulting in countless patent infringement lawsuits.
But today, there seems to be a strong push back towards copyright law. More and more, companies are relying on copyrights instead of patents to protect their software. Recently, Oracle secured a HUGE ($1.3 Billion) verdict against SAP for copyright infringement of their software. Sure, it was just reduced to $272 Million, but still. Some say that's big money. Not surprisingly, Oracle has also begun protecting its APIs using copyright law.
There are, I believe, quite a few compelling reasons for preferring copyright law over patent law for protecting software. Here are just a few of them.
Copyright Protection Is Easier To Get
Unlike patent protection, copyright protection springs naturally from your work without having to do anything else. Whereas a software patent usually costs $20,000 or more to get, if you can even get it, copyright protection is automatic and can cost as little as $60. Plus you can always file your copyright registration, regardless of how long you've been selling your software or how many people you've told about it.
Copyright Protection Is Faster
In a world where last-year's software is old news, the typical three to five year delay to get a patent means that as soon as the software patent issues it has probably already been obsolete for a couple of years. Again, copyright protection exists the moment you write your code. There is nothing else you must do, although it is a very good idea to go ahead and spend that $60 and register your software.
Copyright Infringement Is Easier To Prove
To prove copyright infringement, you basically just put the protected software beside the accused software and take a look. Does the accused software look like a copy? If so, then infringement. That's an oversimplification, but the proof really is almost that simple. Contrast that with patent law, where litigants must often spend millions of dollars on claim charts, claim interpretation, expert reports, and on and on.
There May Be More Money If You Have To Sue
The copyright owner always has the potential of getting the profits of the infringer. Not so with software patents. Also, copyright statutory damages are often significantly higher than any other measure of damages. Patent law has no statutory damages. Throw in the much higher likelihood of also recovering attorneys fees in the copyright case, and the numbers just keep adding up.
Copyright Law Is Still Strong
The copyright laws are still very strong. Copyrights are not routinely stricken down as being "un-copyrightable." Actually, that almost never happens. That's probably because there is just something viscerally wrong about someone else making money by copying your work. Contrast that with patent law, where judicial activism has eroded the strength of patent protection to the point where many question whether patents are even worth what it costs to get them any more. My personal (admittedly unscientific) research suggests that a small company has a better chance of being struck by lightning on the same day it wins the lottery than having a significant damages award upheld against a large company in a patent case.
There are other reasons copyright law is fast becoming the legal theory of choice for protecting software, but these are some good ones. If you are a small software company with a successful product, know that you will have to protect it soon. That, unfortunately, is just the way business is conducted these days. So when that day comes, seriously consider your copyright options.

* If you want to read more about early copyright protection on software, here's a link to an article about many of those "look and feel" cases, including the seminal Lotus v. Borland case that went to the Supreme Court.