Copyrights, Trade Secrets & Protecting your IT Space

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 codeSource 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 [1], 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.


 


[1] 37
C.F.R. 202.20