Copyrights and Software

By David D. Rodrigues

The U.S. Copyright Act of 1976, in general, protects original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The U.S. Copyright Act protects works of authorship which fall within different categories. These different categories include literary works (e.g., a book), musical works (e.g., a musical score), dramatic works (e.g., a play), motion pictures and other audiovisual works (e.g., a movie or television show), and sound recordings (e.g., a song). So long as the work is original, falls within one of the eligible categories, and is fixed on a type of medium (paper, hard drive, file, etc.), that particular work may be eligible for copyright protection.

However, the mere fact that a work is copyrighted does not mean every element of the work is protected. Rather, the Copyright Act sets certain limitations on the scope of copyright protection available to original works of authorship. One of these limitations is expressed in the second section of the Copyright Act, stating that any ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, regardless of the form in which it is described, explained, illustrated, or embodied in such work, are not eligible for copyright protection.

In the context of software, a program is generally an implementation of an idea that is executed by a computer in order to solve a specific problem. The source code itself is a systemized set of instructions for a computer to process in order to reach the desired output or outcome. The source code is a set of instructions that will create the method of operation utilized by the computer, creates the procedures and processes that the computer will execute, and when executed by a computer, creates a system for use by the program’s user. In light of the exception discussed above and the ultimate purpose of source code, can the source code of a computer program be eligible for copyright protection?

The Copyright Act protects computer programs and defines a “computer program” as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. Since the Copyright Act defines a computer program as a set of statements or instructions, for purposes of copyright, the set of statements or instructions, which is the source code of the program, is considered to be the copyrightable literary work. Source code can be considered a literary work because source code is expressed in words, numbers, or other verbal or numerical symbols or indicia. As for the fixed medium requirement, the nature of the material objects, such as books, periodicals, manuscripts, film, tapes, or disks in which the source code is embodied does not matter, so long as it is tangible. Since source code is considered a literary work and can be embodied in a tangible medium, copyright protection can extend to computer programs.

Although “computer programs” as defined in the Copyright Act may be eligible for copyright protection, the copyright exception to ideas and procedures mentioned above still applies. The question then becomes whether a computer program is a mere implementation of an idea, which we know is not eligible for copyright, or is the computer program a literary work which is eligible for copyright protection? Since the Copyright Act contains no explicit standards for separating a computer program’s expression from its idea, we need a manner to separate the copyrightable expression of the idea from the unprotectable idea itself. This test, sometimes referred to as the idea-expression dichotomy, is used to better understand what portions of a literary work, in particular source code, may be eligible for copyright protection.

The court in Atari Games Corp. v. Nintendo of Am., Inc. applied the idea-expression dichotomy to determine whether certain portions of Nintendo’s 10NES program was eligible for copyright protection. The 10NES program is a lockout chip program, comparable to digital rights management systems used today, designed to prevent unlicensed manufacturers of video games from creating video games on the NES console without receiving the license for the appropriate bypass chip.

Although the court in Atari reiterated that source code may be seen as the implementation of an idea (and ideas are not eligible for copyright protection), a computer program, such as Nintendo’s 10NES program, is considered a literary work. Since the computer program is considered a literary work, copyright protection can extend to computer programs because, in this particular case, Nintendo exercised sufficient creativity in the selection and arrangement of its instruction lines (i.e., source code) in the 10NES program. That is, Nintendo’s expression of the source code in the 10NES program was protectable under the Copyright Act in part because it included creative expression. However, the idea of a lock out system, the primary purpose of the 10NES program, alone is not eligible for copyright protection.

To further clarify the idea-expression dichotomy and what portions of source code may be eligible for copyright protection, the court in Johnson Controls, Inc. v. Phoenix Control Systems, Inc. determined that the structure, sequence, and organization of a computer program may be eligible for copyright protection where it qualifies as an expression of an idea, rather than merely an idea itself. So, although a computer program may be a set of instructions or statements which may be the result of an idea, the manner in which the instructions or statements are expressed can ultimately determine that the source code is eligible for copyright protection.

To clarify the idea-expression dichotomy in an example, let’s assume we need to create a function that outputs the first 10 numbers of a Fibonacci sequence (i.e., 1, 1, 2, 3, 5, 7, 8, 13, 21, 34 …) automatically–the idea of this function is not copyrightable. However, the specific expression of the idea of this function, that is, the structure, sequence, and organization of the source code that creates the desired output, is the expression of the idea and that may be eligible for copyright protection.

The idea exception discussed above is not the only exception to copyright pertaining to source code. There is also the “short phrases” exception. The Copyright Office has generally recognized that short phrases may not be subject to copyright. Since source code files can vary in size, smaller classes, copybooks, or header files can merely consist of only a few short source code statements or phrases. It is possible that some portions of source code consisting only of short phrases themselves may not be eligible for copyright protection, therefore causing that specific portion of the source code consisting of short phrases to fall into the public domain. However, it is imperative to note that the short phrases exception is not an automatic bar to copyright eligibility, but rather is determined on a case by case basis. In a recent case regarding the copyrightablity of the Java APIs incorporated into the Android operating system, the court in Oracle America, Inc. v. Google Inc. emphasized that although short phrases of source code, such as function or class names, may not themselves be entitled to copyright protection as a matter of law, not all short phrases of code are automatically deemed as uncopyrightable.

A short phrase may command copyright protection if it exhibits sufficient creativity. As such, even if a basic program is comprised of short phrases of source code, the original combination of elements included in the source code can be copyrightable.

When considering the various types of protection available to authors of computer programs, remember that source code can be eligible copyright protection. Copyright protection gives the author of the work exclusive rights to reproduce the source code, create derivative works from the source code, distribute copies of the source code, and to perform or display the copyrighted work publicly. Of course, is imperative to remember that source code authored by other parties may also be protected by copyright. This is especially important when accessing and using openly available source code, such as open source code. As open source code may be eligible for copyright protection, using or incorporating portions of open source software into your proprietary software, even a small portion, may trigger the provisions of an attached open source license.