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Over the past few years, there has been an abundance of scholarship dealing with the appropriate scope of copyright and patent protection for computer programs. This Article approaches those problems from a slightly different perspective, focusing on the discrete problem of lock-out programs. The choice of lock-out as a paradigm for exploring the interoperability question and the contours of copyright and patent protection of computer programs is informed by two considerations. First, for purposes of the interoperability inquiry, lock-out programs represent an extreme; they are discrete, self-contained modules that are highly innovative in design, yet that serve no purpose other than to regulate access to a computer or computer operating system. Copyright and patent analyses of the lockout problem highlight a fundamental tension between intellectual property rights and considerations of public access, and so afford a useful vehicle for examining the scope of copyright and patent protection for computer programs generally. Second, lock-out may well become a defining technology of the coming “Information Age.” Pundits have prophesied a “set-top box” in every home that affords a gateway to an “information superhighway” where goods and services may be purchased and information accessed. Whether or not the manufacturer of the set-top box will be able to exclude unauthorized purveyors of goods, services, and information will significantly affect both the structure of the emerging market in information services and the nature of individual participation in that market.

The purpose of this Article is twofold. First, the author argues that neither the copyright laws nor the patent laws preclude duplication of protected program features, including “lock” and “key” features, to whatever extent necessary to achieve full compatibility with an unpatented computer system. Second, and more generally, she addresses inconsistencies and conceptual flaws in the current understanding of copyright and patent protection for computer programs that emerge during the first inquiry, and propose doctrinal modifications to resolve them. Although computer programs have been protected by both copyright and patent regimes for years, the precise contours of the protection these regimes afford remain unsettled. For that reason, some scholars, computer lawyers, and computer industry professionals have urged the adoption of sui generi protection for computer programs, but the question of sui generis protection may have become largely irrelevant. The United States has convinced many other countries to follow its lead in “tending both copyright and patent protection to computer programs and is unlikely to change course. For better or worse, it seems we are stuck with the existing modes of intellectual property protection for computer programs. However, this Article argues that certain adjustments to the copyright and patent doctrines governing the protection of computer programs are necessary if the intellectual property laws are to continue to serve both their new and their traditional functions.

Part I of this Article describes the facts and outcomes of two recent cases: Sega Enterprises Ltd. v. Accolade, Inc. and Atari Games Corp. v. Nintendo of America, Inc., both of which involved attempts to enforce intellectual property rights in lock-out programs. The remainder of the Article takes those cases as a starting point for discussion of the interoperability question and what it reveals about the scope and structure of copyright and patent protection for computer programs. Parts II and III explore the copyright implications of reverse engineering interface specifications and lock-out programs and of using the information gained thereby to create and market a compatible program. Part II focuses on the copyright issues resulting from intermediate copying during the reverse engineering process. Part III considers whether the reverse engineer may create a program that duplicates the “key” to the “lock” and other functional features of interoperability-related routines. Part IV addresses issues bearing on the validity of a lock-out patent. Finally, Part V considers whether, in light of the analyses in Parts II, III, and IV, attempts to enforce patents and copyrights against competitors who crack the code for a lockout program constitute patent or copyright misuse. The Article concludes with some general reflections on the efficacy and viability of the copyright and patent models for intellectual property protection of computer programs.

Publication Citation

68 S. Cal. L. Rev. 1091-1202 (1995)