Article provided by Timothy B. McCormack, Seattle Copyright Attorney working in area of copyright litigation, procurement and development. This article is a continuation in the series of Software Copyright articles.
The following computer programming elements are not likely to be copyrighted and thus can be copied without obtaining authorization.
No court in the United States has ruled on whether high-level computer languages like C++ or Java can themselves be protected by copyright. The Copyright Office, however, refuses to register a work consisting solely of a computer language.(51)
An algorithm in the most general sense is an uncopyrightable idea. As used below, the term “algorithm” refers to a “finite sequence of instructions, each of which has a clear meaning and can be performed with a finite amount of effort in a finite length of time.”(52) For example, an algorithm for Christmas shopping could be: (1) find appropriate gift, (2) purchase gift, (3) wrap gift, and (4) present gift to recipient. “When viewed from the highest level, algorithms represent the very essence of abstract ideas; as such, algorithms are ineligible for copyright or patent protection. . . . [and] always remain in the public domain.”(53)
Other Non-Protected Elements
i. Command Structures of Menus in Computer Applications
The command structure of menus such as pull-down menus in computer applications are not protected under copyright law. (The analogy that courts have accepted in not recognizing copyrights for pull-down menus is based on their “button-like” nature). One court specifically compared pull-down menus to the buttons on a VCR. An example of the type of pull down menu that is not protected under copyright law is shown below.
ii. Overlapping Windows on a Computer Display
In Apple Computer, Inc. v. Microsoft Corp., 24 U.S.P.Q.2d 1081 (N.D. Cal. 1992), aff’d, 35 F.3d 1435 (1994), the court held that the look-and-feel of the Macintosh GUI (Graphical User Interface) was given only limited copyright protection because: (1) the desktop metaphor was found to be functional (rather than artistic); (2) the GUI was primarily designed to facilitate use of the computer; and (3) many of the GUI features (e.g., overlapping windows, use of manipulatable icons, etc.) were found to be standardized across competing products for functional considerations and thus unprotectable ideas rather than protectable expression.(55)
Expired Copyrights and Works in the Public Domain
Copyrights that have expired or works that are otherwise in the public domain are not protected by copyright. A detailed discussion of when a work expires or otherwise enters the public domain appears below, under “Copyright Defenses.”
(51)1 Michael D. Scott, SCOTT ON COMPUTER LAW § 3.47 [C] (1998); U.S. Copyright Office, COPENDIUM OF COPYRIGHT OFFICE PRACTICES II, at 300-26 (1984).
(52)A. Aho, J. Hopcraft & D. Ullman, Data Structures and Algorithms 2 (1983).
(53)4 Melville B. Nimmer et al., NIMMER ON COPYRIGHT § 13.03[f] (1998).
(54)See Lotus Development Corp. v. Borland Int’l, Inc., 49 F.3d 807 (1st Cir. 1995), aff’d by an equally divided Court, 116 S. Ct. 804 (1996).
(55)See also Lotus Development Corp. v. Borland Int’l, Inc., 49 F.3d 807 (1st Cir. 1995), aff’d by an equally divided Court, 116 S. Ct. 804 (1996) (addressing interoperability concerns); see also 1 Michael D. Scott, SCOTT ON COMPUTER LAW § 3.47 [C] (1998).
Provided by McCormack Intellectual Property PS and written by Timothy B. McCormack, attorney at law and intellectual property lawyer.