Stefaan A Eeckels wrote: [...] > I would go as far as to say that in the case of software, ...
------- No. 05-04001 ______________________________________________________ UNITED STATES COURT OF APPEALS FOR THE 13th CIRCUIT ______________________________________________________ OMEGA, INC., Plaintiff-Appellant, v. ALPHA, CO., Defendant-Appellee. ___________________________________________________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NOWHERE ___________________________________________________________ BRIEF OF DEFENDANT-APPELLEE APLHA, CO. Thomas R. Graves Shidler Center for Law, Commerce & Technology University of Washington Seattle, WA 98195-3020 Attorney for Appellee March 15, 2006 Page 2 Shidler Center for Law, Commerce & Technology i http://www.law.washington.edu/lct/Events/FOSS/ QUESTIONS PRESENTED 1. Does Connector alone constitute a derivative work of Database Manager 2.0? 2. Must Connector be considered together with Database Manager 2.0 in assessing whether a derivative work has been created, and if so, does the combination constitute a derivative work? Page 3 Shidler Center for Law, Commerce & Technology ii http://www.law.washington.edu/lct/Events/FOSS/ TABLE OF CONTENTS QUESTIONS PRESENTED............................................................................................................ i TABLE OF CONTENTS................................................................................................................ii TABLE OF AUTHORITIES......................................................................................................... iv STATEMENT OF THE CASE....................................................................................................... 1 SUMMARY OF ARGUMENT...................................................................................................... 3 ARGUMENT.................................................................................................................................. 4 I. CONNECTOR DOES NOT CONSTITUTE A DERIVATIVE WORK OF DATABASE MANAGER 2.0.............................................................................................4 A. The literal definition of a derivative work as stated in the Copyright Act has consistently been recognized as unworkably broad. .............................................4 B. Courts have developed and applied important limitations to the definition of derivative works in order to better achieve the fundamental goals of U.S. copyright law ...............................................................................................................6 1. Under the infringement test Connector is not a derivative work of Database Manager 2.0..........................................................................................6 2. Connector does not satisfy the incorporation requirement with respect to Database Manager 2.0..........................................................................................7 II. CONNECTOR NEED NOT BE CONSIDERED TOGETHER WITH DATABASE MANAGER 2.0, AND QUALIFIES AS AN INDEPENDENT WORK OF AUTHORSHIP UNDER THE COPYRIGHT ACT ........................................8 A. Connector is individually copyrightable as a computer program under the Copyright Act ..............................................................................................................8 B. The fact that Alpha intended for Connector to interoperate with Database Manager 2.0 does not support a finding that the two works inherently form a single derivative work..................................................................................................9 C. Even if Connector were to be considered in combination with Database Manager 2.0, the manner in which the two are combined does not constitute distribution as is required according to the license under which Database Manager 2.0 is distributed .........................................................................................11 Page 4 Shidler Center for Law, Commerce & Technology iii http://www.law.washington.edu/lct/Events/FOSS/ III. EVEN IF CONNECTOR IS CONSIDERED TOGETHER WITH DATABASE MANAGER 2.0, THE COMBINED WORK WOULD MORE CLOSELY RESEMBLE A COLLECTIVE WORK RATHER THAN A DERIVATIVE WORK ...............................................................................................................................11 IV. THE POLICY CONCERNS UNDERLYING COPYRIGHT LAW WILL BEST BE SERVED BY A FINDING THAT CONNECTOR DOES NOT CONSTITUTE A DERIVATIVE WORK.........................................................................13 CONCLUSION............................................................................................................................. 14 Page 5 Shidler Center for Law, Commerce & Technology iv http://www.law.washington.edu/lct/Events/FOSS/ TABLE OF AUTHORITIES C ASES Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772 (5th Cir. 1999) ...................................................................................................... 7 Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521 (9th Cir. 1984) ...................................................................................................... 9 Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693 (2d. Cir. 1992) ...................................................................................................... 7 Emerson v. Davies, 8 F. Cas. 615 (1845).................................................................................................................... 5 Faulkner v. Nat'l Geographic Enters., 409 F.3d 26 (2d Cir. 2005) ....................................................................................................... 12 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).................................................................................................................. 13 Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965 (9th Cir. 1992) .................................................................................... 7, 10, 11, 14 Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984) .................................................................................................... 6 Micro Star v. Formgen, 154 F.3d 1107 (9th Cir. 1998) ................................................................................................ 7, 8 Montgomery v. Noga, 168 F.3d 1282 (11th Cir. 1999) .................................................................................................. 7 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).................................................................................................................. 13 United States v. Taxe, 540 F.2d 961 (9th Cir. 1976) ...................................................................................................... 6 Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986) ..................................................................................................... 9 Page 6 Shidler Center for Law, Commerce & Technology v http://www.law.washington.edu/lct/Events/FOSS/ S TATUTES 17 U.S.C.S. § 101............................................................................................................ 5, 9, 10, 12 17 U.S.C.S. § 102(a)................................................................................................................. 9, 13 T REATISES 1-6 Nimmer on Copyright § 3.01 (2005)........................................................................................ 5 C ONSTITUTIONAL P ROVISIONS U.S. Const. Art. I, § 8 ................................................................................................................... 13 Page 7 Shidler Center for Law, Commerce & Technology 1 http://www.law.washington.edu/lct/Events/FOSS/ No. 05-04001 IN THE UNITED STATES COURT OF APPEALS FOR THE 13th CIRCUIT SPRING TERM 2006 OMEGA, INC., Plaintiff-Appellant, v. ALPHA, CO., Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NOWHERE BRIEF FOR DEFENDANT-APPELLEE STATEMENT OF THE CASE Preliminary Statement On June 1, 2005, Plaintiff-Appellant Omega Incorporated (Omega) filed a complaint in the United States District Court for the Western District of Nowhere against Defendant-Appellee Alpha Company (Alpha) demanding release of the source code for Alphas computer application Connector. As grounds, Omega claimed that (i) the license under which Omegas computer application Database Manager 2.0 is distributed requires all licensees (including Alpha) to provide the source code to any derivative works of Database Manager 2.0 that are distributed; (ii) Connector must be considered together with Database Manager 2.0, and their Page 8 Shidler Center for Law, Commerce & Technology 2 http://www.law.washington.edu/lct/Events/FOSS/ combination constitutes a derivative work of Database Manager 2.0; and (iii) even if Connector is considered an independent work, it constitutes a derivative work of Database Manager 2.0. The District Court ruled in favor of Alpha. Omega now seeks review of the District Courts ruling that Connector can be considered alone as an independent work, and that Connector is not a derivative work of Database Manager 2.0. This Court granted review. Statement of Facts A software application called Account Manager is commonly used in the financial services industry, and is owned by Appellee Alpha Company. This application is 100% an original work of authorship by the founder of the company and made generally available in object code form under a mass-market click-wrap licensing agreement. Account Manager has a well-defined proprietary protocol that is used to interface with other Alpha products, including two database programs. A separate third-party database program called Database Manager has been developed and made generally available for many years without charge under a license that requires the source code to be delivered for all derivative works of Database Manager that are distributed. Appellant Omega has customized Database Manager for its own purposes and has made the source code to this customized version, called Database Manager 2.0, generally available under the same terms as Database Manager. Due to the increasing popularity of Database Manager 2.0, Alpha decided to develop a connector program called Connector, that enables Account Manager to be used with Database Manager 2.0. Database Manager 2.0 exposes functionality to third-party components by way of a well-defined non-proprietary application programming interface (an API). Connector Page 9 Shidler Center for Law, Commerce & Technology 3 http://www.law.washington.edu/lct/Events/FOSS/ invokes the functionality provided by Database Manager 2.0 by loading Database Manager 2.0 at execution time, and passing information to Database Manager 2.0 through the API. Alpha makes the object code for Connector generally available under a mass-market click-wrap licensing agreement. Omega discovered Connector through Alpha's website, and purchased a number of licenses to the application from Alpha. The click-wrap license agreement covering Connector does not grant licensees access to the source code of the program, and prohibits licensees from assigning their rights and obligations to an acquirer. Anticipating an acquisition offer, Omega brought suit against Alpha demanding release of the source code alleging the theories described above. SUMMARY OF ARGUMENT The District Courts ruling should be affirmed because Alphas Connector program is an independent work, separate from Database Manager 2.0, and does not constitute a derivative work of Database Manager 2.0. The definition of derivative work, as stated in the Copyright Act, has been recognized by both judges and legal scholars as unworkably broad. Accordingly, courts generally decline to find a derivative work unless the work would infringe the preexisting work on which it is based. Copyright infringement does not occur unless a new work incorporates copyrightable expression that is substantially similar to that of a preexisting copyrighted work. Omega has stipulated that Connector incorporates no copyrightable code from Database Manager 2.0. Thus, because Connector would not infringe the copyright in Database Manager 2.0, Connector cannot constitute a derivative work of that program. Page 10 Shidler Center for Law, Commerce & Technology 4 http://www.law.washington.edu/lct/Events/FOSS/ Although Alpha concedes that it ultimately intended for Connector to interoperate with Database Manager 2.0, Connector constitutes an independent work of authorship as a computer program and need not be considered together with Database Manager 2.0. In copyright law, author intent is used to determine whether a work is a joint work, but has no bearing on whether two separate works must be considered together as a derivative work. Furthermore, even if Connector must be considered together with Database Manager 2.0, the combined program more resembles a collective work as opposed to a derivative work, and in any case Alpha does not distribute the combined work. Thus, Alphas conduct with respect to the combined program would not be covered by the licensing agreement under which Database Manager 2.0 is distributed. Finally, a determination that Connector constitutes a derivative work of Database Manager 2.0 would contradict the fundamental policy underlying copyright law. Copyright is intended to promote progress by providing incentives for authors to create new works. If Connector is deemed a derivative work, software programmers will have no economic incentive to write new programs that are compatible with preexisting programs. Such a result would not promote progress in the software industry, and this Court should affirm the District Courts ruling. ARGUMENT I. CONNECTOR DOES NOT CONSTITUTE A DERIVATIVE WORK OF DATABASE MANAGER 2.0. A. The literal definition of a derivative work as stated in the Copyright Act has consistently been recognized as unworkably broad. Page 11 Shidler Center for Law, Commerce & Technology 5 http://www.law.washington.edu/lct/Events/FOSS/ The Copyright Act states that: A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work. 17 U.S.C.S. § 101 (2005). However, due to the sheer breadth of this definition, both federal courts and leading treatises on copyright law have addressed the need to narrow its application. In Emerson v. Davies, 8 F. Cas. 615 (1845), Justice Story stated that there are, and can be, few, if any, things which, in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows and must necessarily borrow, and use much which was well known and used before. Melville Nimmer reinforced this sentiment by writing that: In a broad sense, almost all works are derivative works in that in some degree they are derived from pre-existing works. . . . It should be noted, however, that the term derivative work in a technical sense does not refer to all works that borrow in any degree from pre-existing works. A work is not derivative unless it has substantially copied from a prior work. 1-6 Nimmer on Copyright § 3.01 (2005) (emphasis added). In our case, Omega stipulates that Connector has neither substantially copied nor incorporated any copyrightable code from Database Manager 2.0. As such, finding that Connector constitutes a derivative work of Database Manager 2.0 would expand the definition of derivative works too far, and would thwart the policy goals underlying U.S. copyright law. Page 12 Shidler Center for Law, Commerce & Technology 6 http://www.law.washington.edu/lct/Events/FOSS/ B. Courts have developed and applied important limitations to the definition of derivative works in order to better achieve the fundamental goals of U.S. copyright law 1. Under the infringement test Connector is not a derivative work of Database Manager 2.0 One limitation that courts have imposed on the definition of derivative works has traditionally arisen in the copyright infringement context. Specifically, a work will constitute a derivative work only if it would be considered an infringing work if the material which it has derived from a preexisting work had been taken without the consent of a copyright proprietor of such preexisting work. Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984)(quoting United States v. Taxe, 540 F.2d 961, 965 n. 2 (9th Cir. 1976)). In our case, Alphas preparation of Connector required no consent because Connector has taken no copyrightable expression from Database Manager 2.0. Thus, Connector could not infringe Omegas copyright in Database Manager 2.0, and according to the standard set forth in Litchfield Connector should not be considered a derivative work. Although this single factor should decide the issue, a full discussion is warranted concerning whether Alphas unauthorized creation of Connector would constitute an infringement of Omegas copyright in Database Manager 2.0. To prove copyright infringement, the plaintiff must show (1) ownership of the copyright, (2) access to the copyrighted work, and (3) substantial similarity between the copyrighted work and the defendants work. Litchfield, 736 F.2d at 1355. With respect to ownership and access, Alpha concedes that Omega owns the copyright in the derivative work Database Manager 2.0, and that Alpha had access to the source code of the program. However, it has been stipulated that any substantial similarity between the code of Connector and Database Manager 2.0 involves purely functional, and therefore uncopyrightable, elements. As such, Page 13 Shidler Center for Law, Commerce & Technology 7 http://www.law.washington.edu/lct/Events/FOSS/ Connector does not satisfy the third requirement for copyright infringement, and cannot be considered a derivative work under the legal standard set forth above. 2. Connector does not satisfy the incorporation requirement with respect to Database Manager 2.0 Another limitation designed to curtail the expansive definition of derivative works is the incorporation requirement. Specifically, [a] derivative work must incorporate a protected work in some concrete or permanent form. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 967 (9th Cir. 1992)(internal quotations omitted); see also, Montgomery v. Noga, 168 F.3d 1282, 1292 (11th Cir. 1999); Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 788 (5th Cir. 1999). In the realm of computer software, an important aspect of this limitation is the basic principle that the functional elements of a work are not protected by copyright law. Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693, 714 (2d. Cir. 1992). The District Court correctly found that any substantial similarity between Connector and Database Manager 2.0 involves purely functional elements. Therefore, Connector does not and cannot satisfy the incorporation requirement, because Galoob requires the incorporation of protected expression. Accordingly, the fact that Connector incorporates no protected expression from Database Manager 2.0 eliminates the possibility that Connector constitutes a derivative work. Omega will argue that our case is more analogous to Micro Star v. Formgen, 154 F.3d 1107 (9th Cir. 1998), as opposed to Galoob. In Formgen, defendants MAP files created new levels for plaintiffs video game and were found to be derivative works of the original game. Id. at 1112. However, analogizing Connector to the MAP files in Formgen is inappropriate. First, it is important to note that the infringed preexisting work in Formgen was the story of plaintiffs Page 14 Shidler Center for Law, Commerce & Technology 8 http://www.law.washington.edu/lct/Events/FOSS/ original game. Id. The court found that defendants MAP files described new stories that were based upon plaintiffs original story, and so the MAP files were deemed to be sequels that incorporated plaintiffs preexisting protected story. Id. at 1111-1112. As such, although the MAP files contained no computer code from plaintiffs preexisting work, the MAP files incorporated copyrightable elements of plaintiffs story and were therefore considered derivative works. Id. at 1112. In contrast to the video games at issue in Formgen, neither Database Manager 2.0 nor Connector contain a copyrightable story. Connector consists of literal computer code that invokes the functionality provided by Database Manager 2.0, and in no way describes Database Manager 2.0. Analogizing Database Manager 2.0 to a story, and Connector to a sequel, is inappropriate. Connector incorporates no copyrightable elements from Database Manager 2.0, whether literal or non-literal. As such, Connector should not be considered a derivative work under the Copyright Act. II. CONNECTOR NEED NOT BE CONSIDERED TOGETHER WITH DATABASE MANAGER 2.0, AND QUALIFIES AS AN INDEPENDENT WORK OF AUTHORSHIP UNDER THE COPYRIGHT ACT A. Connector is individually copyrightable as a computer program under the Copyright Act Copyright protection subsists . . . in original works of authorship fixed in a tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device. 17 U.S.C.S. § 102(a) (2005). In 1980, Congress adopted the Computer Software Copyright Act and with it computer software became copyrightable. Whelan Assocs., Inc. v. Jaslow Dental Page 15 Shidler Center for Law, Commerce & Technology 9 http://www.law.washington.edu/lct/Events/FOSS/ Lab., Inc., 797 F.2d 1222, 1241 (3d Cir. 1986). As stated in the Copyright Act, [a] computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. 17 U.S.C.S. § 101 (2005). The Ninth Circuit confirmed the availability of copyright protection for computer software in both source code and binary code forms, because when written the computer program embodies expression. Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 524-525 (9th Cir. 1984). Connector clearly constitutes a set of statements or instructions, fixed in the form of code, that is used in order to bring about a certain result, namely to allow compatibility between Database Manager 2.0 and Account Manager. As such, Connector, by itself, constitutes a computer program and satisfies the requirements of an original work of authorship under the Copyright Act. Connector should therefore be considered as an individual work, independent from Database Manager 2.0. B. The fact that Alpha intended for Connector to interoperate with Database Manager 2.0 does not support a finding that the two works inherently form a single derivative work Omega has argued that because Alpha ultimately intended for Connector to be used with Database Manager 2.0, the two programs must be considered together as a single derivative work. However, as mentioned above, Connector alone qualifies as an independent computer program as that term is defined in the Copyright Act. See supra Part II.A. This remains true regardless of Alphas intent with respect to how the program will ultimately be employed by end users. Furthermore, the definition of derivative work in Section 101 of the Copyright Act makes no mention of intent. 17 U.S.C.S. § 101. Thus, requiring Connector to be considered together with Database Manager 2.0 as a derivative work would be inconsistent with the language of the Copyright Act, and Omegas argument is without merit. Page 16 Shidler Center for Law, Commerce & Technology 10 http://www.law.washington.edu/lct/Events/FOSS/ The only significant body of copyright law in which the intent of the author determines the status of the work involves whether a work constitutes a joint work. This is to be expected, as the Copyright Act defines a joint work as a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. 17 U.S.C.S. § 101 (2005)(emphasis added). The copyright definition of a derivative work, on the other hand, contains no such reference to intent. Id. The facts remain that Connector incorporates no copyrightable expression from Database Manager 2.0, and Alpha does not distribute Connector with Database Manager 2.0. Thus, according to current case law, Connector is not a derivative work of Database Manager 2.0. See supra Part I.B. Basing the ultimate determination of whether Connector constitutes a derivative work on the fact that Alpha intended the program to work with Database Manager 2.0 would be inappropriate. The Ninth Circuit recognized the significant problems that would arise if computer programs designed to interoperate with preexisting programs were automatically deemed to be derivative works of the preexisting programs. Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 969 (9th Cir. 1992). In Galoob, the court described this issue in the context of spell-checkers that operate within existing word processors by signaling the writer when a word is misspelled. Id. The court went on to state that [t]hese applications, as well as countless others, could not be produced and marketed if courts were to conclude that the word processor and spell-checker combination is a derivative work based on the word processor alone. Id. Appropriately, the court in Galoob held that the work under scrutiny did not constitute a derivative work. Id. This same reasoning should be followed in our present case, as Connector is precisely analogous to the spell-checker program described by the Ninth Circuit. Page 17 Shidler Center for Law, Commerce & Technology 11 http://www.law.washington.edu/lct/Events/FOSS/ Finally, Even if Omegas legal argument regarding the importance of author intent were a sound one, which it is not, its position would not prevail on the facts of our case. Connector was created specifically so as not to copy Database Manager 2.0, and is made generally available for purchase by the public as an independent piece of software. Thus, even if intent were a determining factor, Alphas intent was clearly to distribute Connector as a separate commodity. C. Even if Connector were to be considered in combination with Database Manager 2.0, the manner in which the two are combined does not constitute distribution as is required according to the license under which Database Manager 2.0 is distributed The click-wrap license under which Database Manager 2.0 is distributed requires the release of source code only when licensees distribute derivative works of the program. Thus, even if the combination of Connector and Database Manager 2.0 were considered a derivative work, and even if Alpha itself combined Connector with Database Manager 2.0 in the process of creating Connector, for quality testing purposes, Alpha would not be responsible for distributing a derivative work. By extension, end users who combine Connector with Database Manager 2.0 are also not distributing the combined work. As such, the combination of Connector and Database Manager 2.0 does not fall within the scope of the license for Database Manager 2.0. III. EVEN IF CONNECTOR IS CONSIDERED TOGETHER WITH DATABASE MANAGER 2.0, THE COMBINED WORK WOULD MORE CLOSELY RESEMBLE A COLLECTIVE WORK RATHER THAN A DERIVATIVE WORK Under the Copyright Act a collective work is defined as a work . . . in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. 17 U.S.C.S. § 101 (2005). In our case, Database Manager 2.0 existed and Page 18 Shidler Center for Law, Commerce & Technology 12 http://www.law.washington.edu/lct/Events/FOSS/ became popular before Connector, and therefore clearly constitutes a work that is separate and independent from Connector. Furthermore, Alpha created Connector as an individual component, makes Connector available to the public separately from any other computer program, and Connector is independently copyrightable as a computer program. See supra Part II.A-B. As such, Connector is also a separate and independent work. Thus, when Omega and other end users download and execute Connector in conjunction with Database Manager 2.0, any further copyrightable work that might be created is merely the assembly of two separate and independent works. This assembly is defined as a collective work under the Copyright Act, not as a derivative work. It should be noted that under the Copyright Act, collective works constitute a sub- category of compilations. 17 U.S.C.S. § 101 (2005)(definition for compilation). A compilation is defined as a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. Id. The copyright in a compilation extends only to materials contributed by the compiling author. Faulkner v. Nat'l Geographic Enters., 409 F.3d 26, 34 (2d Cir. 2005). Thus, to qualify for copyright protection, a collective work" must also constitute an original work of authorship. 17 U.S.C.S. § 102(a) (2005). The combination of Connector and Database Manager 2.0 by end users may or may not meet the traditionally low standard for originality applied in copyright case law. See generally Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). However, this determination will have little bearing on Alphas position regarding the collective works issue. Alpha simply contends that if the combination of Database Manager 2.0 and Connector must be Page 19 Shidler Center for Law, Commerce & Technology 13 http://www.law.washington.edu/lct/Events/FOSS/ categorized as a single work under the Copyright Act, that combined work more closely resembles a collective work as opposed to a derivative work. IV. THE POLICY CONCERNS UNDERLYING COPYRIGHT LAW WILL BEST BE SERVED BY A FINDING THAT CONNECTOR DOES NOT CONSTITUTE A DERIVATIVE WORK. At its most fundamental level, the policy underlying U.S. copyright law is found in the U.S. Constitution, which states that Congress shall have the Power . . . to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. U.S. Const. Art. I, § 8. Thus, when called upon to interpret the Copyright Act courts often cite the overarching importance of promoting progress. For example, in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), the U.S. Supreme Court emphasized that [t]he monopoly privileges that Congress may authorize are . . . intended to motivate the creative activity of authors and inventors. Id. at 429. It is therefore critical in our current case for the Court to achieve a result that would most effectively promote progress in the field of computer software. For the reasons described by the Ninth Circuit in Galoob, a judicial determination that Connector is a derivative work of Database Manager 2.0 would serve only to hinder progress in the software industry. See supra Part II.B. Expanding the scope of derivative works in this manner would have the negative and far-reaching consequence of deterring computer programmers from writing new software designed to interoperate with preexisting software. The tremendous growth and success of the U.S. software industry is the direct result of creative and original software developers laboring under the economic incentives offered by copyright. Indeed, the current copyright system has proved very effective at encouraging innovation. Page 20 Shidler Center for Law, Commerce & Technology 14 http://www.law.washington.edu/lct/Events/FOSS/ Expanding the definition of derivative works to encompass works like Connector would have the opposite effect by eliminating the incentives to create new programs designed to interoperate with separate, preexisting programs. Such a legal development would intrude significantly upon innovation in the software industry, and would directly contradict the goals of copyright law. Furthermore, such a development would undermine many valuable attempts to achieve broader compatibility and standardization among various types of computer programs, another important policy goal. The progress of science and useful arts cannot reach its full potential unless authors and inventors are encouraged to build upon the work of others. If the authors of preexisting computer programs have the automatic ability to control or prohibit all subsequent compatible programs, it will be to the detriment of many would-be programmers. By extension, this will only serve to harm the general public by reducing the total number of interoperable computer programs available. Such a result would stifle rather than support the important policy goals underlying the Copyright Act. CONCLUSION For the foregoing reasons, Defendant-Appellee Alpha respectfully requests that this Court affirm the District Court ruling that Connector can be considered alone as an independent computer program, and that it is not a derivative work of Database Manager 2.0. Dated: March 15, 2006 Respectfully submitted, _______________________ Thomas R. Graves Counsel for Defendant-Appellee Page 21 Shidler Center for Law, Commerce & Technology 15 http://www.law.washington.edu/lct/Events/FOSS/ -------- regards, alexander. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
