10. Copyright protections vs. patent protections for software

The district court intimated that copyright protection may be less applicable in this case than patent protection: "A question then arises whether the copyright holder is more appropriately asserting an exclusive right to a functional system, process, or method of operation that belongs in the realm of patents, not copyrights." (Oracle America, Inc. v. Google Inc., supra, 872 F.Supp.2d, at 984.) In its Appellee Brief 40, Google quoted Pamela Samuelson, Are Patents on Interfaces Impeding Interoperability?: "After Sega [Sega Enterprises. Ltd. v. Accolade, Inc., supra, 977 F.2d 1510], developers could no longer hope to protect [software] interfaces by copyright . . . Sega signaled that the only reliable means for protecting the functional requirements for achieving interoperability was by patenting them." (93 Minn. L. Rev. (2009) 1945, 1959.) Prof. Samuelson has also suggested that "a commission of computer program experts [should] draft a new form of intellectual property law for machine-readable programs." (CONTU Revisited: The Case Against Copyright Protection for Computer Programs in Machine-Readable Form, 1984 Duke L.J. 663, 764.) Prof. Samuelson's claim that courts are now "more receptive to software patents" (Interoperability? 93 Minn. L. Rev. at 1959) is contradicted by many other authorities, and by recent court decisions affecting software patentability.

The appellate court cited a May 8, 2014, article in the Economist entitled Stalking Trolls: "[M]any innovators have argued that the electronics and software industries would flourish if companies trying to bring new technology (software innovations included) to market did not have to worry about being sued for infringing thousands of absurd patents at every turn. A perfectly adequate means of protecting and rewarding software developers for their ingenuity has existed for over 300 years. It is called copyright."[1]

In the February 26, 2014, edition of the Washington Post, Timothy B. Lee wrote in Will the Supreme Court save us from software patents?: "If you write a book or a song, you can get copyright protection for it. If you invent a new pill or a better mousetrap, you can get a patent on it. But for the last two decades, software has had the distinction of being potentially eligible for both copyright and patent protection. Critics say that’s a mistake. They argue that the complex and expensive patent system is a terrible fit for the fast-moving software industry. And they argue that patent protection is unnecessary because software innovators already have copyright protection available."[2]

In Mazer v. Stein, the U.S. Supreme Court stated that "[n]either the Copyright Statute nor any other says that because a thing is patentable it may not be copyrighted." (Mazer v. Stein (1954) 347 U.S. 201, 217.) Likewise, the CONTU Report recommended that "copyright law be amended 'to make it explicit that computer programs, to the extent that they embody an author’s original creation, are proper subject matter of copyright'" (CONTU Report at 1, quoted in Oracle America, Inc. v. Google Inc., supra, 750 F.3d 1339 at 1380-81.)

Whether software copyrights and software patents can coexist, or whether one form of intellectual property is preferred over the other in protecting the rights of software developers, marketers, and users, is examined infra.

4. Patent

[1] http://www.economist.com/news/technology-quarterly/21598321-intellectualproperty-after-being-blamed-stymying-innovationamerica-vague
[2] http://www.washingtonpost.com/blogs/the-switch/wp/2014/02/26/will-the-supreme-court-save-us-from-software-patents/