Tuesday, October 4, 2011

Copyright Protection for Software: Keeps Getting Better

I continue to believe that copyright protection for software is the better legal theory than patent law. Copyright protection is way easier to get, cheaper to acquire, and exists instantly. It also lasts longer, but who uses 70-year old software anyway?
I think my opinion definitely has its supporters. Obviously, the Oracle case against SAP proves that there are big money judgments in software copyright cases. Flushed with its success in the SAP case, Oracle also filed a copyright infringement suit against Google over the Android operating system. That case is ongoing.
In another, more interesting case, SAS Institute sued World Programming for copyright infringement of SAS's software. One of the interesting things about that case is that two things are undisputed:
  • World Programming did not copy any of SAS's source code, and
  • World Programming did copy the unique features of SAS's software.
The reason this is interesting is that, if SAS were to prevail, then this would further support the use of copyright law to protect software in a way that is meaningful. If we are interested in promoting innovation and creativity, why should competitors be allowed to copy the successful software of an original developer? The competitors should be required to develop their own unique software, not copy the popular features of proven software. That is how to promote innovation, not hinder it.
SAS filed two essentially identical cases, one in the U.K. and one here in the U.S. The case here in the U.S. was dismissed because, the district court decided, the U.K. case should take care of the entire dispute. SAS basically lost the case in the U.K. because, the English High Court decided, copyright protection wasn't the right mechanism to protect software. Although on its face that sounds bad for my theory, the reality is that the English High Court did accept that copyright protection is not limited to the source code. In addition, the case is on appeal to the EU Court of Justice, who are being faced with precisely the question whether copyright protection should be applied to the unique features of software.
While some argue it should not be, I disagree with that view. To those who argue that applying copyright law more forcefully to software would "stagnate" the industry, I say nonsense. If software developers are are allowed to just copy someone else's successful product rather than develop their own distinctive software, then who is developing the distinctive software? If they are all copying the same features, then that is the definition of stagnation. I say, to the creative go the spoils of their creations. If all you can do is copy someone else's work, then you should have to pay them their tribute.