You are a business owner, you have vested time and energy into your R&D sector and you serendipitously discover that your team of engineers have developed what they think will be the next Linkedin. What do you do to protect this new software technology and maintain a competitive edge against potential market infringers?
Software protection is an evolving area of law, namely because the market has changed so drastically in the past thirty years. Software starts with a computer programmer transforming an idea into an algorithm and then turning this algorithm into a functional program. In the prehistoric days of computing, these algorithms were incorporated into machine code, commonly referred to as object code, nonsensical to the human eye. This early software was tied to hardware and was unable to exist independently so the need for software protection was unnecessary… think IBM.
However, sometime in the 1970’s software and hardware were uncoupled and each developed independently of the other. With the advent of the personal computer less than ten years later, the demand for portable and compact software grew exponentially where programs could be loaded from a floppy disk. Remember those?
After years of evolution, the computer programs began to walk and talk and higher order programming languages, called source code, developed. Source code provided programmers an easier way read and write software but did not replace object code. Source code must still be translated by a compiler into object code for a computer to run the program. So now there are three components of software: algorithms, source code and object code to protect.
The computer age emerged way too rapidly for the law to adapt and soon important battles between Word and Word Perfect, Internet Explorer and Netscape, Microsoft and Apple were waged, carving out exceptions and extensions to current IP protections to encompass the computer generation.
Today, computer programs are very unique creatures and often demand all three areas of intellectual property, patent, copyright and trade secret, working in unison to best protect the owner from future imitators and infringers. Trade secrets were the initial method used to protect software and are still commonly used, but have the adverse effect of locking programmers down. While copyright protection is the most common and utilized way to protect software, the functional implications of the software are patentable subject matter as well. So what do you do when you need to protect your software? The best option is to start with registering the code for a copyright. If there are unique functional components in the code, the application may be protected by applying for a patent as well. However, registering a copyright is much easier and a good place to begin the process as it provides protection for all three components of software.
The traditional quid pro quo of copyright of publication for protection does not apply to software. While the latest Erik Larson thriller obtains protection after registering and presenting a best and complete version of his work to be publically available at the Library of Congress, publishing the complete version of source code would be against the author’s intent.
The method for applying for a protecting computer programs starts with the programmer to format a complete version of the best edition of a “closed source model” and then submit a limited disclosure to the Library of Congress. The limited disclosure requires “identifying portions” of the source code be submitted, which is usually the first and last twenty-five pages. According to the Code of Federal Regulations, the author or programmer may block out work that contains trade secret information within the submitted pages so long as the blocked out portions be proportionally less than the disclosed portions and reveals an appreciable amount of source code. These terms “proportionally” and “appreciable” were intentionally written to include variations on what is considered an “identifiable portion.” Therefore, the source code must be carefully reviewed, to ensure sufficient disclosure to reap full copyright protection without disclosing so much as to compromise secret components. In order to best protect your software, you will need to consult with an attorney familiar with these limited disclosure requirements.