Section 11.1. Protecting Programs and Data


11.1. Protecting Programs and Data

Suppose Martha wrote a computer program to play a video game. She invited some friends over to play the game and gave them copies so that they could play at home. Steve took a copy and rewrote parts of Martha's program to improve the quality of the screen display. After Steve shared the changes with her, Martha incorporated them into her program. Now Martha's friends have convinced her that the program is good enough to sell, so she wants to advertise and offer the game for sale by mail. She wants to know what legal protection she can apply to protect her software.

Copyrights, patents, and trade secrets are legal devices that can protect computers, programs, and data. However, in some cases, precise steps must be taken to protect the work before anyone else is allowed access to it. In this section, we explain how each of these forms of protection was originally designed to be used and how each is currently used in computing. We focus primarily on U.S. law, to provide examples of intent and consequence. Readers from other countries or doing business in other countries should consult lawyers in those countries to determine the specific differences and similarities.

Copyrights

In the United States, the basis of copyright protection is presented in the U.S. Constitution. The body of legislation supporting constitutional provisions contains laws that elaborate on or expand the constitutional protections. Relevant statutes include the U.S. copyright law of 1978, which was updated in 1998 as the Digital Millennium Copyright Act (DMCA) specifically to deal with computers and other electronic media such as digital video and music. The 1998 changes brought U.S. copyright law into general conformance with the World Intellectual Property Organization treaty of 1996, an international copyright standard to which 95 countries adhere.

Copyrights are designed to protect the expression of ideas. Thus, a copyright applies to a creative work, such as a story, photograph, song, or pencil sketch. The right to copy an expression of an idea is protected by a copyright. Ideas themselves, the law alleges, are free; anyone with a bright mind can think up anything anyone else can, at least in theory. The intention of a copyright is to allow regular and free exchange of ideas.

The author of a book translates ideas into words on paper. The paper embodies the expression of those ideas and is the author's livelihood. That is, an author hopes to earn a living by presenting ideas in such an appealing manner that others will pay to read them. (The same protection applies to pieces of music, plays, films, and works of art, each of which is a personal expression of ideas.) The law protects an individual's right to earn a living, while recognizing that exchanging ideas supports the intellectual growth of society. The copyright says that a particular way of expressing an idea belongs to the author. For example, in music, there may be two or three copyrights related to a single creation: A composer can copyright a song, an arranger can copyright an arrangement of that song, and an artist can copyright a specific performance of that arrangement of that song. The price you pay for a ticket to a concert includes compensation for all three creative expressions.

Copyright gives the author the exclusive right to make copies of the expression and sell them to the public. That is, only the author (or booksellers or others working as the author's agents) can sell copies of the author's book.

Definition of Intellectual Property

The U.S. copyright law (§102) states that a copyright can be registered for "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." Again, the copyright does not cover the idea being expressed. "In no case does copyright protection for an original work of authorship extend to any idea." The copyright must apply to an original work, and it must be in some tangible medium of expression.

Only the originator of the expression is entitled to copyright; if an expression has no determinable originator, copyright cannot be granted. Certain works are considered to be in the public domain, owned by the public, by no one in particular. Works of the U.S. government and many other governments are considered to be in the public domain and therefore not subject to copyright. Works generally known, such as the phrase "top o' the mornin' to ye," or the song "Happy Birthday to You," or a recipe for tuna noodle casserole, are also so widely known that it would be very difficult for someone to trace originality and claim a copyright. Finally, copyright lasts for only a limited period of time, so certain very old works, such as the plays of Shakespeare, are in the public domain, their possibility of copyright having expired.

The copyrighted expression must also be in some tangible medium. A story or art work must be written, printed, painted, recorded (on a physical medium such as a plastic record), stored on a magnetic medium (such as a disk or tape), or fixed in some other way. Furthermore, the purpose of the copyright is to promote distribution of the work; therefore, the work must be distributed, even if a fee is charged for a copy.

Originality of Work

The work being copyrighted must be original to the author. As noted previously, some expressions in the public domain are not subject to copyright. A work can be copyrighted even if it contains some public domain material, as long as there is some originality, too. The author does not even have to identify what is public and what is original.

For example, a music historian could copyright a collection of folksongs even if some are in the public domain. To be subject to copyright, something in or about the collection has to be original. The historian might argue that collecting the songs, selecting which ones to include, and putting them in order was the original part. In this case, the copyright law would not protect the folksongs (which would be in the public domain) but would instead protect that specific selection and organization. Someone selling a sheet of paper on which just one of the songs was written would likely not be found to have infringed on the copyright of the historian. Dictionaries can be copyrighted in this way, too; the authors do not claim to own the words, just their expression as a particular dictionary.

Fair Use of Material

The copyright law indicates that the copyrighted object is subject to fair use. A purchaser has the right to use the product in the manner for which it was intended and in a way that does not interfere with the author's rights. Specifically, the law allows "fair use of a copyrighted work, including such use by reproduction in copies… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research." The purpose and effect of the use on the potential market for or value of the work affect the decision of what constitutes fair use. For example, fair use allows making a backup copy of copyrighted software you acquired legally: Your backup copy protects your use against system failures but it doesn't affect the author because you have no need for nor do you want use of two copies at once. The copyright law usually upholds the author's right to a fair return for the work, while encouraging others to use the underlying ideas. Unfair use of a copyrighted item is called piracy.

The invention of the photocopier made it more difficult to enforce fair use. You can argue it is fair use to make a copy of the Tuscany section of a travel book to carry with you and throw away during your holiday so you don't have to carry the whole book with you. Today many commercial copy shops will copy a portionsometimes an entire chapterof a book or a single article out of a journal but refuse to copy an entire volume, citing fair use. With photocopiers, the quality of the copy degrades with each copy, as you know if you have ever tried to read a copy of a copy of a copy of a paper.

The copyright law also has the concept of a first sale: after having bought a copyrighted object, the new owner can give away or resell the object. That is, the copyright owner is entitled to control the first sale of the object. This concept works fine for books: An author is compensated when a bookstore sells a book, but the author earns no additional revenue if the book is later resold at a secondhand store.

Requirements for Registering a Copyright

The copyright is easy to obtain, and mistakes in securing a copyright can be corrected. The first step of registration is notice. Any potential user must be made aware that the work is copyrighted. Each copy must be marked with the copyright symbol ©, the word Copyright, the year, and the author's name. (At one time, these items were followed by All rights reserved to preserve the copyright in certain South American countries. Adding the phrase now is unnecessary but harmless.)

The order of the elements can be changed, and either © or Copyright can be omitted (but not both). Each copy distributed must be so marked, although the law will forgive failure to mark copies if a reasonable attempt is made to recall and mark any ones distributed without a mark.

The copyright must also be officially filed. In the United States a form is completed and submitted to the Copyright Office, along with a nominal fee and a copy of the work. Actually, the Copyright Office requires only the first 25 and the last 25 pages of the work, to help it justify a claim in the event of a court case. The filing must be done within three months after the first distribution of the work. The law allows filing up to five years late, but no infringements before the time of filing can be prosecuted.

A U.S. copyright now lasts for 70 years beyond the death of the last surviving author or, if the item was copyrighted by a company or organization, for 95 years after the date of publication. The international standard is 50 years after the death of the last author or 50 years from publication.

Copyright Infringement

The holder of the copyright must go to court to prove that someone has infringed on the copyright. The infringement must be substantial, and it must be copying, not independent work. In theory, two people might write identically the same song independently, neither knowing the other. These two people would both be entitled to copyright protection for their work. Neither would have infringed on the other, and both would have the right to distribute their work for a fee. Again, copyright is most easily understood for written works of fiction because it is extremely unlikely that two people would express an idea with the same or similar wording.

The independence of nonfiction works is not nearly so clear. Consider, for example, an arithmetic book. Long division can be explained in only so many ways, so two independent books could use similar wording for that explanation. The number of possible alternative examples is limited, so that two authors might independently choose to write the same simple example. However, it is far less likely that two textbook authors would have the same pattern of presentation and the same examples from beginning to end.

Copyrights for Computer Software

The original copyright law envisioned protection for things such as books, songs, and photographs. People can rather easily detect when these items are copied. The separation between public domain and creativity is fairly clear. And the distinction between an idea (feeling, emotion) and its expression is pretty obvious. Works of nonfiction understandably have less leeway for independent expression. Because of programming language constraints and speed and size efficiency, computer programs have less leeway still.

Can a computer program be copyrighted? Yes. The 1976 copyright law was amended in 1980 to include an explicit definition of computer software. However, copyright protection may not be an especially desirable form of protection for computer works. To see why, consider the algorithm used in a given program. The algorithm is the idea, and the statements of the programming language are the expression of the idea. Therefore, protection is allowed for the program statements themselves, but not for the algorithmic concept: copying the code intact is prohibited, but reimplementing the algorithm is permitted. Remember that one purpose of copyright is to promote the dissemination of ideas The algorithm, which is the idea embodied in the computer program, is to be shared.

A second problem with copyright protection for computer works is the requirement that the work be published. A program may be published by distribution of copies of its object code, for example, on a disk. However, if the source code is not distributed, it has not been published. An alleged infringer cannot have violated a copyright on source code if the source code was never published.

Copyrights for Digital Objects

The Digital Millennium Copyright Act (DMCA) of 1998 clarified some issues of digital objects (such as music files, graphics images, data in a database, and also computer programs), but it left others unclear.

Among the provisions of the DMCA are these:

  • Digital objects can be subject to copyright.

  • It is a crime to circumvent or disable antipiracy functionality built into an object.

  • It is a crime to manufacture, sell, or distribute devices that disable antipiracy functionality or that copy digital objects.

  • However, these devices can be used (and manufactured, sold, or distributed) for research and educational purposes.

  • It is acceptable to make a backup copy of a digital object as a protection against hardware or software failure or to store copies in an archive.

  • Libraries can make up to three copies of a digital object for lending to other libraries.

So, a user can make reasonable copies of an object in the normal course of its use and as a protection against system failures. If a system is regularly backed up and so a digital object (such as a software program) is copied onto many backups, that is not a violation of copyright.

The uncertainty comes in deciding what is considered to be a device to counter piracy. A disassembler or decompiler could support piracy or could be used to study and enhance a program. Someone who decompiles an executable program, studies it to infer its method, and then modifies, compiles, and sells the result is misusing the decompiler. But the distinction is hard to enforce, in part because the usage depends on intent and context. It is as if there were a law saying it is legal to sell a knife to cut vegetables but not to harm people. Knives do not know their uses; the users determine intent and context.

Consider a music CD that you buy for the obvious reason: to listen to again and again. You want to listen to the music on your MP3 player, a reasonable fair use. But the CD is copy protected, so you cannot download the music to your computer to transfer it to your MP3 player. You have been prohibited from reasonable fair use. Furthermore, if you try to do anything to circumvent the antipiracy protection, you violate the antipiracy provision, nor can you buy a tool or program that would let you download your own music to your own MP3 player, because such a tool would violate that provision.

Reaction to the Digital Millennium Copyright Act has not been uniformly favorable. (See, for example, [MAN98, EFF06].) Some say it limits computer security research. Worse, others point out it can be used to prevent exactly the free interchange of ideas that copyright was intended to promote. In 2001 a Princeton University professor, Edward Felten, and students presented a paper on cryptanalysis of the digital watermarking techniques used to protect digital music files from being copied. They had been pressured not to present in the preceding April by music industry groups who threatened legal action under the DMCA.

Digital objects are more problematic than paper ones because they can be copied exactly. Unlike fifth-generation photocopies, each digital copy of a digital object can be identical to the original.

Copyright protects the right of a creator to profit from a copy of an object, even if no money changes hands. The Napster situation (see Sidebar 11-1) is an interesting case, closely related to computer data. It clearly distinguishes between an object and a copy of that object.

An emerging principle is that software, like music, is acquired in a style more like rental than purchase. You purchase not a piece of software, but the right to use it. Clarifying this position, the U.S. No Electronic Theft (NET) Act of 1997 makes it a criminal offense to reproduce or distribute copyrighted works, such as software or digital recordings, even without charge.

The area of copyright protection applied to computer works continues to evolve and is subject to much interpretation by the courts. Therefore, it is not certain what aspects of a computer work are subject to copyright. Courts have ruled that a computer menu design can be copyrighted but that "look and feel" (such as the Microsoft Windows user interface) cannot. But is not the menu design part of the look and feel?

Although copyright protection can be applied to computer works, the copyright concept was conceived before the electronic age, and thus the protection may be less than what we desire. Copyrights do not address all the critical computing system elements that require protection. For example, a programmer might want to protect an algorithm, not the way that algorithm was expressed in a particular programming language. Unfortunately, it may be difficult to obtain copyright protection for an algorithm, at least as copyright law is currently interpreted. Because the copyright laws are evolving, we must also take care when copyrights are used as excuses, as we see in Sidebar 11-2.

Sidebar 11-1: Napster: No Right to Copy

Napster is a web-based clearinghouse for musical files. To see why its existence was problematic, we must first consider its predecessor, MP3. MP3.com was an archive for digital files of music. Users might obtain the MP3 file of a particular song for their personal listening pleasure. Eventually, one of the users might upload a file to MP3.com, which made it available to others. In May 2000, the courts ruled that MP3.com had illegally copied over 45,000 audio CDs and distributed copyright works illegally.

To address the legal issues, music lovers sought an approach one step away from actual distribution, thereby being legal under U.S. laws. Instead of being a digital archive, Napster was designed to be a clearinghouse for individuals. A person might register with Napster to document that he or she had a digital version of a particular performance by an artist. A second person would express interest in that recording, and Napster would connect the two. Thus, Napster never really touched the file itself. Instead, Napster operated a peer-to-peer file swapping service.

In February 2001, the U.S. 9th Circuit Court ruled that Napster infringed on the copyrights of various artists. The Recording Industry Association of America brought the suit, representing thousands of performers.

Yet another step removed is peer-to-peer (P2P) sharing. With P2P you install software that opens all or part of your disk storage for access by others (and you receive similar access to other computers). The security implications are staggering but obvious to anyone reading this book, so we will not list them here. We are concerned now with the legal and ethical aspects of P2P sharing.

The crux of these cases is what a person buys when purchasing a CD. The copyright law holds that a person is not buying the music itself, but is buying the right to use the CD. "Using" the CD means playing it, lending it to a friend, giving it to someone else, or even reselling it. But the original artist has the right to control distribution of copies of it, under the principle of first sale.


Patents

Patents are unlike copyrights in that they protect inventions, tangible objects, or ways to make them, not works of the mind. The distinction between patents and copyrights is that patents were intended to apply to the results of science, technology, and engineering, whereas copyrights were meant to cover works in the arts, literature, and written scholarship. A patent can protect a "new and useful process, machine, manufacture, or composition of matter." The U.S. law excludes "newly discovered laws of nature… [and] mental processes." Thus "2+2=4" is not a proper subject for a patent because it is a law of nature. Similarly, that expression is in the public domain and would thus be unsuitable for a copyright. Finally, you can argue that mathematics is purely mental, just ideas. Nobody has ever seen or touched a twotwo horses, yes, but not just a two. A patent is designed to protect the device or process for carrying out an idea, not the idea itself.

Sidebar 11-2: Inappropriate Reference to Copyright Law

Sometimes vendors refer to copyright law inappropriately, to discourage customers from returning a software package. Kaner and Pels [KAN98] explain that some companies do not want to be bothered dealing with returns, especially when the software package it has sold turns out to be defective. The company may publish a policy, posted on the store wall, window, or web site, noting that it cannot accept returns because doing so would violate the copyright act. But in fact the act says nothing about returns. It restricts only software rentals. The case analysis for the lawsuit between Central Point Software, Inc., and Global Software and Accessories, Inc., (resolved in 1995) notes that giving a refund does not turn the sale into a rental.


Requirement of Novelty

If two composers happen to compose the same song independently at different times, copyright law would allow both of them to have copyright. If two inventors devise the same invention, the patent goes to the person who invented it first, regardless of who first filed the patent. A patent can be valid only for something that is truly novel or unique, so there can be only one patent for a given invention.

An object patented must also be nonobvious. If an invention would be obvious to a person ordinarily skilled in the field, it cannot be patented. The law states that a patent cannot be obtained "if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." For example, a piece of cardboard to be used as a bookmark would not be a likely candidate for a patent because the idea of a piece of cardboard would be obvious to almost any reader.

Procedure for Registering a Patent

One registers a copyright by filing a brief form, marking a copyright notice on the creative work, and distributing the work. The whole process takes less than an hour.

To obtain a patent, an inventor must convince the U.S. Patent and Trademark Office that the invention deserves a patent. For a fee, a patent attorney will research the patents already issued for similar inventions. This search accomplishes two things. First, it determines that the invention to be patented has not already been patented (and, presumably, has not been previously invented). Second, the search can help identify similar things that have been patented. These similarities can be useful when describing the unique features of the invention that make it worthy of patent protection. The Patent Office compares an application to those of all other similar patented inventions and decides whether the application covers something truly novel and nonobvious. If the office decides the invention is novel, a patent is granted.

Typically, an inventor writes a patent application listing many claims of originality, from very general to very specific. The Patent Office may disallow some of the more general claims while upholding some of the more specific ones. The patent is valid for all the upheld claims. The patent applicant reveals what is novel about the invention in sufficient detail to allow the Patent Office and the courts to judge novelty; that degree of detail may also tell the world how the invention works, thereby opening the possibility of infringement.

The patent owner uses the patented invention by producing products or by licensing others to produce them. Patented objects are sometimes marked with a patent number to warn others that the technology is patented. The patent holder hopes this warning will prevent others from infringing.

Patent Infringement

A patent holder must oppose all infringement. With a copyright, the holder can choose which cases to prosecute, ignoring small infringements and waiting for serious infractions where the infringement is great enough to ensure success in court or to justify the cost of the court case. However, failing to sue a patent infringementeven a small one or one the patent holder does not know aboutcan mean losing the patent rights entirely. But, unlike copyright infringement, a patent holder does not have to prove that the infringer copied the invention; a patent infringement occurs even if someone independently invents the same thing, without knowledge of the patented invention.

Every infringement must be prosecuted. Prosecution is expensive and time consuming, but even worse, suing for patent infringement could cause the patent holder to lose the patent. Someone charged with infringement can argue all of the following points as a defense against the charge of infringement.

  • This isn't infringement. The alleged infringer will claim that the two inventions are sufficiently different that no infringement occurred.

  • The patent is invalid. If a prior infringement was not opposed, the patent rights may no longer be valid.

  • The invention is not novel. In this case, the supposed infringer will try to persuade the judge that the Patent Office acted incorrectly in granting a patent and that the invention is nothing worthy of patent.

  • The infringer invented the object first. If so, the accused infringer, and not the original patent holder, is entitled to the patent.

The first defense does not damage a patent, although it can limit the novelty of the invention. However, the other three defenses can destroy patent rights. Worse, all four defenses can be used every time a patent holder sues someone for infringement. Finally, obtaining and defending a patent can incur substantial legal fees. Patent protection is most appropriate for large companies with substantial research and development (and legal) staffs.

Applicability of Patents to Computer Objects

The Patent Office has not encouraged patents of computer software. For a long time, computer programs were seen as the representation of an algorithm, and an algorithm was a fact of nature, which is not subject to patent. An early software patent case, Gottschalk v. Benson, involved a request to patent a process for converting decimal numbers into binary. The Supreme Court rejected the claim, saying it seemed to attempt to patent an abstract idea, in short, an algorithm. But the underlying algorithm is precisely what most software developers would like to protect.

In 1981, two cases (Diamond v. Bradley and Diamond v. Diehr) won patents for a process that used computer software, a well-known algorithm, temperature sensors, and a computer to calculate the time to cure rubber seals. The court upheld the right to a patent because the claim was not for the software or the algorithm alone, but for the process that happened to use the software as one of its steps. An unfortunate inference is that using the software without using the other patented steps of the process would not be infringement.

Since 1981 the patent law has expanded to include computer software, recognizing that algorithms, like processes and formulas, are inventions. The Patent Office has issued thousands of software patents since these cases. But because of the time and expense involved in obtaining and maintaining a patent, this form of protection may be unacceptable for a small-scale software writer.

Trade Secrets

A trade secret is unlike a patent or copyright in that it must be kept a secret. The information has value only as a secret, and an infringer is one who divulges the secret. Once divulged, the information usually cannot be made secret again.

Characteristics of Trade Secrets

A trade secret is information that gives one company a competitive edge over others. For example, the formula for a soft drink is a trade secret, as is a mailing list of customers or information about a product due to be announced in a few months.

The distinguishing characteristic of a trade secret is that it must always be kept secret. Employees and outsiders who have access to the secret must be required not to divulge the secret. The owner must take precautions to protect the secret, such as storing it in a safe, encrypting it in a computer file, or making employees sign a statement that they will not disclose the secret.

If someone obtains a trade secret improperly and profits from it, the owner can recover profits, damages, lost revenues, and legal costs. The court will do whatever it can to return the holder to the same competitive position it had while the information was secret and may award damages to compensate for lost sales. However, trade secret protection evaporates in case of independent discovery. If someone else happens to discover the secret independently, there is no infringement and trade secret rights are gone.

Reverse Engineering

Another way trade secret protection can vanish is by reverse engineering. Suppose a secret is the way to pack tissues in a cardboard box to make one pop up as another is pulled out. Anyone can cut open the box and study the process. Therefore, the trade secret is easily discovered. In reverse engineering, one studies a finished object to determine how it is manufactured or how it works.

Through reverse engineering someone might discover how a telephone is built; the design of the telephone is obvious from the components and how they are connected. Therefore, a patent is the appropriate way to protect an invention such as a telephone. However, something like a soft drink is not just the combination of its ingredients. Making a soft drink may involve time, temperature, presence of oxygen or other gases, and similar factors that could not be learned from a straight chemical decomposition of the product. The recipe of a soft drink is a closely guarded trade secret. Trade secret protection works best when the secret is not apparent in the product.

Applicability to Computer Objects

Trade secret protection applies very well to computer software. The underlying algorithm of a computer program is novel, but its novelty depends on nobody else's knowing it. Trade secret protection allows distribution of the result of a secret (the executable program) while still keeping the program design hidden. Trade secret protection does not cover copying a product (specifically a computer program), so it cannot protect against a pirate who sells copies of someone else's program without permission. However, trade secret protection makes it illegal to steal a secret algorithm and use it in another product.

The difficulty with computer programs is that reverse engineering works. Decompiler and disassembler programs can produce a source version of an executable program. Of course, this source does not contain the descriptive variable names or the comments to explain the code, but it is an accurate version that someone else can study, reuse, or extend.

Difficulty of Enforcement

Trade secret protection is of no help when someone infers a program's design by studying its output or, worse yet, decoding the object code. Both of these are legitimate (that is, legal) activities, and both cause trade secret protection to disappear.

The confidentiality of a trade secret must be ensured with adequate safeguards. If source code is distributed loosely or if the owner fails to impress on people (such as employees) the importance of keeping the secret, any prosecution of infringement will be weakened. Employment contracts typically include a clause stating that the employee will not divulge any trade secrets received from the company, even after leaving a job. Additional protection, such as marking copies of sensitive documents or controlling access to computer files of secret information, may be necessary to impress people with the importance of secrecy.

Protection for Computer Objects

The previous sections have described three forms of protection: the copyright, patent, and trade secret laws. Each of these provides a different form of protection to sensitive things. In this section we consider different kinds of computer objects and describe which forms of protection are most appropriate for each kind. Table 11-1 shows how these three forms of protection compare in several significant ways.

Table 11-1. Comparing Copyright, Patent, and Trade Secret Protection.
 

Copyright

Patent

Trade Secret

Protects

Expression of idea, not idea itself

Inventionthe way something works

A secret, competitive advantage

Protected object made public

Yes; intention is to promote publication

Design filed at Patent Office

No

Requirement to distribute

Yes

No

No

Ease of filing

Very easy, do-it-yourself

Very complicated; specialist lawyer suggested

No filing

Duration

Life of human originator plus 70 years, or total of 95 years for a company

19 years

Indefinite

Legal protection

Sue if unauthorized copy sold

Sue if invention copied

Sue if secret improperly obtained


Computer artifacts are new and constantly changing, and they are not yet fully appreciated by the legal system based on centuries of precedent. Perhaps in a few years the issue of what protection is most appropriate for a given computer object will be more clear-cut. Possibly a new form of protection or a new use of an old form will apply specifically to computer objects. For example, the European Union has already enacted model legislation for copyright protection of computer software. However, one of its goals was to promote software that builds on what others have done. Thus, the E.U. specifically exempted a product's interface specification from copyright and permitted others to derive the interface to allow development of new products that could connect via that interface.

Until the law provides protection that truly fits computer goods, here are some guidelines for using the law to protect computer objects.

Protecting Hardware

Hardware, such as chips, disk drives, or floppy disk media, can be patented. The medium itself can be patented, and someone who invents a new process for manufacturing it can obtain a second patent.

Protecting Firmware

The situation is a little less clear with regard to microcode. Certainly, the physical devices on which microcode is stored can be patented. Also, a special-purpose chip that can do only one specific task (such as a floating-point arithmetic accelerator) can probably be patented. However, the data (instructions, algorithms, microcode, programs) contained in the devices are probably not patentable.

Can they be copyrighted? Are these the expression of an idea in a form that promotes dissemination of the idea? Probably not. And assuming that these devices were copyrighted, what would be the definition of a copy that infringed on the copyright? Worse, would the manufacturer really want to register a copy of the internal algorithm with the Copyright Office? Copyright protection is probably inappropriate for computer firmware.

Trade secret protection seems appropriate for the code embedded in a chip. Given enough time, we can reverse-engineer and infer the code from the behavior of the chip. The behavior of the chip does not reveal what algorithm is used to produce that behavior. The original algorithm may have better (or worse) performance (speed, size, fault tolerance) that would not be obvious from reverse engineering.

For example, Apple Computer is enforcing its right to copyright protection for an operating system embedded in firmware. The courts have affirmed that computer software is an appropriate subject for copyright protection and that protection should be no less valid when the software is in a chip rather than in a conventional program.

Protecting Object Code Software

Object code is usually copied so that it can be distributed for profit. The code is a work of creativity, and most people agree that object code distribution is an acceptable medium of publication. Thus, copyright protection seems appropriate.

A copyright application is usually accompanied by a copy of the object being protected. With a book or piece of music (printed or recorded), it is easy to provide a copy. The Copyright Office has not yet decided what is an appropriate medium in which to accept object code. A binary listing of the object code will be taken, but the Copyright Office does so without acknowledging the listing to be acceptable or sufficient. The Office will accept a source code listing. Some people argue that a source code listing is not equivalent to an object code listing, in the same way that a French translation of a novel is different from its original language version. It is not clear in the courts that registering a source code version provides copyright protection to object code. However, someone should not be able to take the object code of a system, rearrange the order of the individual routines, and say that the result is a new system. Without the original source listings, it would be very difficult to compare two binary files and determine that one was the functional equivalent of the other simply through rearrangement.

Several court cases will be needed to establish acceptable ways of filing object code for copyright protection. Furthermore, these cases will have to develop legal precedents to define the equivalence of two pieces of computer code.

Protecting Source Code Software

Software developers selling to the mass market are reticent to distribute their source code. The code can be treated as a trade secret, although some lawyers also encourage that it be copyrighted. (These two forms of protection are possibly mutually exclusive, although registering a copyright will not hurt.)

Recall that the Copyright Office requires registering at least the first 25 and the last 25 pages of a written document. These pages are filed with the Library of Congress, where they are available for public inspection. This registration is intended to assist the courts in determining which work was registered for copyright protection. However, because they are available for anybody to see, they are not secret, and copyright registration can expose the secrecy of an ingenious algorithm. A copyright protects the right to distribute copies of the expression of an idea, not the idea itself. Therefore, a copyright does not prevent someone from reimplementing an algorithm, expressed through a copyrighted computer program.

As just described, source code may be the most appropriate form in which to register a copyright for a program distributed in object form. It is difficult to register source code with the Copyright Office while still ensuring its secrecy. A long computer program can be rearranged so that the first and last 25 pages do not divulge much of the secret part of a source program. Embedding small errors or identifiable peculiarities in the source (or object) code of a program may be more useful in determining copyright infringement. Again, several court cases must be decided in order to establish procedures for protection of computer programs in either source or object form.

Protecting Documentation

If we think of documentation as a written work of nonfiction (or, perhaps, fiction), copyright protection is effective and appropriate for it. Notice that the documentation is distinct from the program. A program and its documentation must be copyrighted separately. Furthermore, copyright protection of the documentation may win a judgment against someone who illegally copies both a program and its documentation.

In cases where a written law is unclear or is not obviously applicable to a situation, the results of court cases serve to clarify or even extend the words of the law. As more unfair acts involving computer works are perpetrated, lawyers will argue for expanded interpretations of the law. Thus, the meaning and use of the law will continue to evolve through judges' rulings. In a sense, computer technology has advanced much faster than the law has been able to.

Protecting Web Content

Content on the web is media, much the same as a book or photograph, so the most appropriate protection for it is copyright. This copyright would also protect software you write to animate or otherwise affect the display of your web page. And, in theory, if your web page contains malicious code, your copyright covers that, too. As we discussed earlier, a copyrighted work does not have to be exclusively new; it can be a mixture of new work to which you claim copyright and old things to which you do not. You may purchase or use with permission a piece of web art, a widget (such as an applet that shows a spinning globe), or some music. Copyright protects your original works.

Protecting Domain Names and URLs

Domain names, URLs, company names, product names, and commercial symbols are protected by a trademark, which gives exclusive rights of use to the owner of such identifying marks.




Security in Computing
Security in Computing, 4th Edition
ISBN: 0132390779
EAN: 2147483647
Year: 2006
Pages: 171

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