[This paper presents arguments to show that a copyright is sufficent to protect computer programs. It is, therefore, biased since its intent is to persuade. Since it was written over a year ago, some of the evidence, specifically in the Apple and Franklin case, might interpreted slightly differnt now. Nevertheless, here it is. -- Jeff Porter] COPYRIGHTS V. SOFTWARE PIRACY Microsoft, a leading producer of computer programs, reports that fifty percent of their sales are lost to people who copy their programs instead of buying them. These people, called software pirates, endanger the software industry by severely cutting profits and forcing software prices up. There is absolutely no doubt that software piracy is the greatest threat facing the software industry today.(1) What can the industry do? It can turn to the law because the United States Copyright Act can be used effectively to control software piracy. Before discussing the copyright laws and how they effect software piracy, several definitions must be established. Stephen A. Becker provides one of the clearest definitions of a copyright, saying "A copyright is essentially the right of an author to control the copying of his or her work by others."(2) Another term, copyright infringement, must also be defined. An author's copyright is said to be infringed upon when copies of his work or a portion of his work are made without his permission.(3) Two technical terms, source code and object code, need to be defined. Both terms refer to the form in which a computer program exists. Source code, which can be easily read and understood by humans, is the program in the form that it was originally written. Object code is not produced by humans; it is produced from the source code by another computer program. Object code is the program in a form that the computer can execute but cannot be understood by humans. The copyright laws can now be used to combat software piracy because they apply to software. Before 1980, however, the laws were not clear on whether or not computer software was eligible for copyright protection. The original United States Copyright Act had been written long before the invention of computers, thus software was not covered. In the 1950's, however, the need for new copyright laws had become apparent. Congress worked for twenty years on new legislation, the result of which was the United States Copyright Act of 1976, a revision that greatly improved the earlier copyright laws. During the debates, International Business Machines Corporation (IBM) and others argued that computer programs needed copyright protection. Congress did not know what to do about computer software at the time, so they bypassed that problem by failing to say to what extent computer software was covered. Congress did, however, establish the National Commission on New Technological uses of Copyrighted Materials to study the computer software problem and make recommendations. Despite the fact that the Copyright Act did not solve the computer software problem, Barbara A. Ringer, register of copyrights at the Library of Congress in 1976, said that the new laws were "flexible enough to deal with the new technologies that have emerged..."(4) Barbara Ringer was not entirely correct, however. Four years later, following the recommendations of the Commission, Congress amended the Copyright Act of 1976 with the Computer Software Act of 1980. This bill, which received little opposition in Congress, had three main provisions. The Copyright Act of 1976 was amended to explicitly state that computer programs could be copyrighted; that the copyright applied to all forms of computer programs, including both source and object code; and that the rightful owners of computer programs could modify the program and make copies as necessary for normal use, including backups.(5) Although the laws had been passed, there was still some question as to whether or not software was a proper subject for copyright protection. By the end of August, 1983, however, all of the uncertainty of copyright applicability to computer software had been removed by court decisions. Cases such as Tandy Corp. v. Personal Micro Computers, Inc. (1982), Williams Electronics, Inc. v. Artic International, Inc. (1982), Stern Electronics, Inc. v. Kaufman (1982), Midway Manufacturing Co. v. Strohon (1983), and most recently, Apple Computer Inc. v. Franklin Computer Corp. have shown that copyrights do apply to software.(6) In the most recent case, Apple had charged Franklin with copying the control software from Apple's popular Apple II computer and using the software in the Franklin's Ace computer. Apple requested a preliminary injunction to force Franklin to stop production, but the injunction was denied. Franklin argued that Apple's programs could not be copyrighted on the grounds that the programs were not intelligible to humans and that the programs were a part of the machine and not a "literary work".(7) Apple appealed the decision and was granted the injunction. The appeal was successful because of the precedents established in the earlier cases held that software, any type of software and in any form, was eligible for copyright protection. The Apple case and the others have firmly established that copyrights do apply to computer software. The Copyright Act is effective in controlling software piracy because it provides sufficient coverage to all forms of the computer program: the source code, the object code, and the manner of expressing the ideas of the program. Source code has always been covered by the copyright laws because it is just plain text.(8) Although there never had been any questions as to whether or not source code could be copyrighted, Congress eliminated all possible uncertainties when they drafted the Computer Software Act of 1980. By defining a computer program as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result," source code was specifically covered with the word "indirectly."(9) Although protection of the source code is important, it is more important to protect the object code form of the program since almost all programs are sold in object code form. Fortunately, copyright protection was extended to object code with the Computer Software Act of 1980. Many court cases have also proved that object code is protected in all forms. Apple v. Franklin, for example, has shown that object code is protected when stored on disk or stored in electronic etchings on a silicon chip.(10) All forms of a computer program are protected by the copyright laws, but the ideas behind the program are not. "A copyright does not protect ideas but only the manner of expressing ideas," was the ruling in the case M. M. Business Forms Corp. V. Uarco, Inc., which established the long-standing precedent that ideas cannot be copyrighted.(11) This is not a great disadvantage, however, since "the form of expression of a program is often critical and modification of that expression often destroys or substantially reduces its utility."(12) Thus, if only an idea is copied from one program and used in another program, the resulting program will probably be inferior to the original. If the idea is important, it might be possible to protect the idea with a trade secret or patent. Trade secrets can be used very effectively to protect the ideas of program, provided that it is possible to bind all those involved with the program to secrecy.(13) Under certain conditions, a patent may apply to a computer program. In Diamond v. Bradley, a patent was granted to a computer program that was used in a new process, although Justice Warren Burger prevented it from becoming a precedent by removing himself from the case. In the earlier Supreme Court case Parker v. Flook, however, a patent was denied.(14) With future legislation the patentability question may be resolved. Copyrights can be used effectively to control software piracy because of their legal power. Unlike patents, copyrights may be obtained quickly and at low costs. There is no delay in obtaining a copyright since "copyrights in a program begin when the program is created."(15) The copyright should be registered with the Copyright Office, however. This requires a form to be completed and sent to Copyright Office along with a ten dollar registration fee and two copies of the program. Copyrights are also effective in the fight against software piracy because of their long duration and the excellent retribution they provide against infringers. The duration of a copyright ranges upward from fifty years, depending upon the conditions under which the program was created. Fifty years of protection for a computer program is more than adequate in the rapidly changing field of computers, which is less than fifty years old. Copyrights also allow the owner to have the courts require that copyright infringers stop duplicating the program. If the copyright is registered with the Copyright Office before the infringement occurs, the owner may be eligible to collect damages and attorney fees from the infringer. Copyrights can also be used to stop pirates where other laws fail. Most programs are sold with a licensing agreement which restricts the use of the program to one machine and prohibits piracy. The problem with licensing agreements is that they do not have any legal power over those who obtain the programs without signing an agreement.(16) Using the copyright laws, those who obtain copies without signing a licensing agreement can be prosecuted. The copyright laws have been effective in stopping large scale copying. This is evident in cases such as Apple v. Franklin, Tandy Corp v. EACA International Ltd., Microsoft Corp v. Advanced Logic Systems, and others. The copyright laws do not offer much protection against small scale copying, but this is not of major economic significance, Microsoft and Apple say.(17) Because the United States Copyright Act clearly applies to all forms of computer programs, it offers sufficient protection to all forms of computer programs, and it has been effectively used to stop piracy, things are going to change. Microsoft and the rest of the software industry can expect sales to go up and prices to go down when the United States Copyright Act is used to combat software piracy.