Document Type

Article

Publication Date

2006

Abstract

Computer software is somewhat of a problem child for intellectual property law. Courts and legislatures have struggled to encourage innovations in software development while, at the same time, attempting to avoid undesirable digital information monopolies. Neither the patent nor the copyright system has provided a particularly satisfactory paradigm for software protection. Although patents have received greater attention than copyrights in the software context (consider, for example, the recent BlackBerry case), copyright law arguably creates more insidious undercurrents in today's marketplace. This is partly because we have not yet appreciated the potential impact of recent developments in programming methodology and digital copyright law on software copyrighting practice. If lawmakers do not act expeditiously to stem the tide of copyright protection, the software industry could be facing an intellectual property grab of much greater proportions than previously thought possible. This Article argues for a shifting of the paradigms employed to encourage software innovation. In particular, copyright law should be scaled back and, to the extent it is retained, the doctrines of merger and scenes a faire should be more clearly developed to avoid unjustifiable information monopolies, and questionable market practices. Lawmakers also need to recognize that trade secrecy is now a more viable candidate for software protection than in the past, due to recent advances in encryption technology.

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