The Strange Odyssey of Software Interfaces and Intellectual Property Law

Citation: Pamela Samuelson (2008/12/12) The Strange Odyssey of Software Interfaces and Intellectual Property Law.
Internet Archive Scholar (search for fulltext): The Strange Odyssey of Software Interfaces and Intellectual Property Law
Download: http://ssrn.com/abstract=1323818
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Summary

Claims software interfaces have gone through 4 phases, more than any other intellectual product, in relation to IP law:

1. public domain if published, trade secret if not
2. (software made subject to copyright, so) some pursued making "structure, sequence, and organization" (SSO) of software interfaces subject to copyright (rejected by courts)
3. patents sought for software interfaces
4. consideration of muting patents for interfaces due to concerns about competition and follow-on innovation

IBM first published interface specifications, then treated them as trade secret when it became dominant, and even when forced to unbundlle software and hardware, did not publish interfaces. Some firms reverse engineered interfaces, leading others to include no reverse engineering in their trade secret licensing agreements.

1980 US Congress made software subject to copyright, and cases involving SSO of software interfaces (analogous to "non-literal" but subject to copyright SSO of literary works), unless there was only one way to implement functionality, in which case the idea and expression were "merged" and not subject to copyright.

Apple v Franklin, latter had simply copied former code. But in CA v Altai, latter had reimplmeneted. Altai won, and decision including 3-step test:

1. "constructing a hierarchy of abstractions, from most abstract to most detailed, for the plaintiff’s program"
2. "“filtering” out of consideration various elements of the program that are beyond the scope of copyright protection" including a) elements dictated by efficiency b) external design constraints, including other software program will work with c) "commonplace programming techniques, ideas, and know-how"; later decisions have added d) "functional design elements, such as procedures, processes, systems, and methods of operation"
3. "comparing any remaining “golden nuggets” of expression in the plaintiff’s program with the defendant’s program to determine if the defendant copied substantial amounts of expression from the plaintiff’s program"

Decision meant copyright for programs was "thin" and suggested looking into patents.

In Sega v Accolade copyright for interfaces ruled out, four reasons:

1. programs are utilitarian works, subject to only thin copyright
2. interfaces not subject to copyright as they are “functional requirements for achieving compatibility with other programs.”
3. reverse engineering for purposes of compatibility is ok (imperiled trade secret, leaving only patent)
4. "even copying some exact code from another program would not be infringement insofar as that code was essential to achieving interoperability"

Through 1980s courts adopted broad concept of patentability for software.

Patents on interfaces more readily used offensively than those on internal program workings, as latter not easily discernible.

Some have argued use of patented methods should be non-infringing if necessary for interoperability, effectively creating a merger doctrine for patents.

Standards bodies such as W3C have required royalty free patent grants.

Others have advocated for abolishing software patents.

Another approach is allowing use with mandatory license, RAND terms.

In 1980s some suggested sui generis regime for software, typically copyright-like but shorter term and with affordance for interoperability. This was passed by.

"Even though developing interfaces is expensive, time-consuming, and intellectually challenging, the huge success of the software industry in the past thirty years suggests that adequate incentives to develop computer programs do exist, even without IP protection for one commercially significant component, namely, interfaces."

Fortuitous that Altai defendant seemed nice; if they seemed bad ruling would have been bad for competition and follow-on innnovation.