Vol 7 No 1 - Roger Williams University School of Law

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certain circumstances, exempted from infringement.268In European Union member countries, specific exceptionshave been enacted in national copyright laws,269 as required bythe 1991 EC Directive on the Legal Protection of ComputerPrograms.270 Article 6 of the Directive provides that copying andadaptation occurring in the decompilation of software code ispermitted where it is “indispensable to obtain the informationnecessary to achieve the interoperability of an independentlycreated computer program with other programs.”2712. Porting to Platforms of ChoiceTwo recent cases highlight a more specific and immediatechallenge for the principle of fair use for interoperability in thedigital environment. The challenge is to enable softwareapplications to be separated from and interoperable with a varietyof operating systems and associated hardware (platforms).272 It isin facilitating this choice with respect to operating platforms (e.g,open versus proprietary) that interoperability will allow the userto speak in their choice of differently coded/digital voices, therebyenhancing the goal of digital diversity.In the U.S. case of Sony Computer Entertainment, Inc. v.Connectix Corp.,273 the Ninth Circuit Court of Appeals held firmlyin favour of reverse engineering274 of software in order to allowdifferent software products to be ported or joined (i.e.,interoperate) with different hardware, firmware or softwareplatforms.275 In that case, Judge Canby, delivering the opinion ofthe court, explained that the intermediate276 copying that268. Copyright Act, 1968, § 47D (Austl.), amended by Copyright Amendment(Computer Programs) Act, 1999, (Austl.).269. See, e.g., Copyright Designs and Patents Act, 1988, §§ 50A, 50B, 50C (UK)(discussing acts done under statutory authority).270. Council Directive 91/250, 1991 O.J. (L 122) 42.271. Id.272. Platform is defined, in terms of computer science, as the basic technology of acomputer system’s hardware and software that defines how a computer is operated anddetermines what other kinds of software can be used, at http://www.dictionary.com/cgibin/dict.pl?term=platform(last visited Nov. 3, 2001). See also Microsoft, 84 F. Supp. 2dat 12 (stating that because the operating system supports applications while closelyinteracting with the PC system’s hardware, the operating system serves as a platform).273. 203 F.3d 596 (9th Cir. 2000).274. See id. at 599-601.275. See id. at 609.276. Id. at 598-99. Intermediate copying is that which is undertaken in the process
occurred was legitimate because it merely facilitated the copyingof the unprotected (non-copyright) function or idea of thesoftware.277 Interestingly, the existence of a patent would havemade things more difficult for Connectix.278 However, the courtclearly stated that intermediate copying is allowable where it isused to determine function that can facilitate the making oftransformative (better or extended) products.279Connectix had developed software that emulated the SonyPlayStation on a personal computer.280 In other words, theirVirtual Game Station allowed consumers to play Sony games ontheir personal computer and not just on the Sony PlayStationconsole. This allowed portability that the court also seemed tosupport in its discussion of transformative use: “The productcreates a new platform, the personal computer on whichconsumers can play games designed for Sony PlayStation. Thisinnovation affords opportunities for game play in newenvironments . . . .”281 The court was not concerned with thenumber of intermediate copies that had been made nor that theend product (even though containing a different source code, yetthe same function) competed with the Sony PlayStation.282In contrast, Reimerdes, which was brought pursuant to theDMCA for offering, providing or otherwise trafficking in a deviceof developing the final product which itself may not, as in the Connectix case, be a copy.277. Id. at 602-03. The judge remarked:[I]n the case of computer programs the idea/expression distinction posesdistinct ‘unique problems’ because computer programs are in essence‘utilitarian articles - articles that accomplish tasks. As such they containmany logical, structural and visual display elements that are dictated by thefunction to be performed, by considerations of efficiency, or by externalfactors such as compatibility requirements and industry demands’ . . . the fairuse doctrine preserves public access to the ideas and functional elementsembedded in copyrighted computer software programs.Id. at 603.278. See Sony, 203 F.3d at 596; Maureen A. O’Rourke, Toward a Doctrine of FairUse in Patent Law, 100 Colum. L. Rev. 1177 (2000); Richard H. Stern, Scope ofProtection Problems with Patents and Copyrights on Methods of Doing Business, 10Fordham Intell. Prop. Media & Ent. L.J. 105 (1999). It may be necessary in the not toodistant future to state the rationale more simply in terms of allowing copying on thebasis of increasing portability and diversity.279. See Sony, 203 F.3d at 602-03.280. Id. at 599.281. Id. at 606.282. Id. at 604 (this might be termed “horizontal” interoperability); see O’Rourke,supra note 281, at 1213, 1223.
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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of intellectual property rights mus
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only such as are original, and are
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emedies set forth in section 1406.T
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eproduced, though there be no ingen
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the same, or substantially the same
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with respect to “patents of inven
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Page 112 and 113: motivating force.While antitrust or
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Page 122 and 123: In response to Intel’s argument t
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Page 158 and 159: implemented. As this section will h
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Page 178 and 179: Universal Music Group uses software
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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