Robert W. Gomulkiewicz, Legal Protection for Software: Still a Work in Progress, 8 Tex. Wesleyan L. Rev. 445 (2002), https://digitalcommons.law.uw.edu/faculty-articles/685
software, patent, copyright, contracts, intellectual property
Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.
The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect software. Yet, the debate about how much protection the law should provide is as vigorous today as ever.
The debate has two conflicting perspectives. On one side are those who say that the current collection of laws does not protect software enough. They point out that every year the software industry loses billions of dollars to copyright infringers known as software pirates, and that renegade programmers use their craft to corrupt software with viruses, break into computer systems to steal data, and shut down entire computer networks for sport. They remind us that some companies spend significant resources developing digital databases that may not be copyrightable, yet Congress has not passed database protection legislation. On the other side are those who believe that legal protection of software is too strong already. They accuse software publishers of using patents to stifle innovation. They protest that recent amendments to the Copyright Act suppress the fair use of information. They worry that standard form contracts unfairly extend intellectual property protection.
This Essay traces the debate about legal protection for software from its early days to the present. It describes the issues that legislatures and courts have faced over the years and why many of those issues are back on the table today.