Introduction: It's a Software World
Technology creates new industries at an ever-increasing pace. With each new industry comes the need for unique legal protections: for the inventors and innovators who transform the technologies into products and services, as well as for the people who use the new products and services. Existing law serves as the foundation for those legal protections; it is adapted and modified as necessary, following well-established legal principles, to meet the needs of the new industry.
Technological innovation presents a continuous challenge to the body of law, forcing it to conform to unforeseen circumstances and new, complex legal conflicts. No technology has introduced more such complexity than the software industry. Software is both tangible (written code and media) and intangible (code in execution). It is both a product and a service. All software programs must be written to a particular set of standards for it to function, yet each program is unique.
The software industry enforces its intellectual property rights through protections in four areas: trademark, trade secrets, copyright, and patent. While each of the four types protects a unique aspect of software, there is considerable overlap, particularly between the application of copyright and patent law to software. In the legal world, 50 years can seem like the blink of an eye. Yet over the last half century software legal protections have modulated between preferring one type of protection over others. The modulation shows no sign of abating as recent cases indicate a possible trend away from software patent protections and toward software copyright protections.
This paper presents an overview of the four types of software intellectual property protections based on recent U.S. cases: What does each category protect, what type and level of protection is provided in terms of remedies, and what are each type's pending legal questions?
Software will only become more important as the technology is applied to nearly every aspect of our daily lives: from home and vehicle monitoring and control, to commerce, to personal and national security. Legal questions pertaining to software will only become thornier. Establishing a solid foundation for software legal protections will enable innovation and promote the arts and sciences in ways that have a positive impact on everyone's life.
2. Trade Secrets
Table of Cases