Convergence in the Law of Software Copyright?

Mark A. Lemley, Assistant Professor, University of Texas School of Law

1/01/2005
(Original Publish Date: 1995)

Courts and commentators have spilled a great deal of ink-and paid an enormous amount in legal fees-over the last 15 years in an effort to determine the appropriate scope of copyright protection for computer software. To a large extent, this debate has focused on how software copying should be tested. On one side, "broad constructionists" have emphasized the need to compare the copyrighted and accused works as a whole, in order to give protection to the "total concept and feel" of the works. On the other side, "narrow constructionists" have urged the methodical dissection of copyrighted works into their component parts in order to determine what exactly qualifies for copyright protection. For all intents and purposes, this aspect of the debate is over. In the last three years, virtually all the courts to consider this issue have lined up with the "narrow constructionists," engaging in "analytic dissection" of computer programs in order to determine whether any copyrightable expression has actually been copied. Most commonly, this analytic dissection has taken the form of the "abstraction-filtration-comparison" test set forth in Computer Associates v. Altai. While there are still a few courts in which the "total concept and feel" approach remains the law, the approach is moribund: since Altai was decided, no court has endorsed the broader "total concept and feel" approach. This does not mean that we can all go home, however. Rather than ending, the debate over software copyright law appears to be shifting its focus. Having finally resolved the debate that has been plaguing software copyright law since its inception, courts are discovering to their chagrin, that deciding what test to apply actually tells you very little about how to apply that test. Despite the convergence of courts on Altai's filtration approach, courts remain fundamentally conflicted in deciding how broadly to protect software copyright. Further, there remains a good deal of misunderstanding about what exactly it means to "abstract" and "filter" a computer program.