Protecting and Licensing Software: Copyright and Common Law Contract Considerations

摘要

Many practitioners and scholars believe that the hybrid nature of computer software programs— creative expression intended to perform utilitarian tasks—is the primary characteristic that makes the protection of a software developer's intellectual property rights a particularly thorny problem. While the unique nature of software as a form of intellectual property complicates its commercial distribution, that is not the crux of the dilemma. The true challenge in protecting intellectual property rights in commercially distributed software programs, as well in the more traditional kinds of intellectual property, is that posed by the revolutionary development of digital technology. Under the copyright law, software programs are considered literary works, just like books or songs. The copyright law provides a special kind of protection for the creative works within its ambit. Certain specific uses for such works, such as copying or distribution, are reserved as exclusive to the author of these works, while all other uses are freely available to the general public. Thus for example, someone who wishes to make copies of a book must first obtain permission from the author, which is usually granted in the form of a license for a fee. On the other hand, someone who merely wishes to read a book need only gain access to it. Once in possession of a copy, a user is free to read a book without first gaining the author's permission or paying the author a dime.