A Legal Blog by Aaron | Sanders, PLLC


The Aftermarket Holy Grail: Using Software Copyrights to Control Replacement Parts

Intellectual Property and Personal Property: Two Great Tastes That Might Not Taste Great Together

When everything runs on software, then everything will be subject to copyright protection, and you might not like the consequences. Let’s take cars, for example. In the old days, if your car needed a new distributor cap, you’d go down the neighborhood auto supply shop, and you would have several different manufacturers competing for your money, which keeps the price for replacement parts low. One of the manufacturers might be “authorized” by the car manufacturer and appropriately branded. And that one might command a somewhat higher price because of that association and the sense that it will somehow work better with your car. That premium is the result of branding—and trademark law—and years of hard work building up the brand.

The Right to Distribute Distributors

Slap a little computer module on the distributor cap, and the car manufacturer has a lot more control over who can manufacture replacement distributor caps. That’s because the computer module requires software, and software is made up of characters, and that makes it a literary work that is subject to copyright protection. It doesn’t matter if the only characters involved are 0 and…

Plug and play! (But where does the software come from?)

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Google v Oracle (Part 3): Why Copyright Is a Bad Fit for Software

NOTE: This is the third (and final) in a series. Part 1 is here. Part 2 is here. See Part 1 for my sources for information about the trial.

But it’s All We’ve Got

After two trials, one appellate reversal, another appeal on the way, millions on millions of dollars in attorney’s fees, thousands on thousands of attorney hours, thousands on thousands of pages of testimony, and we are no closer to understanding whether, and when, APIs are copyrightable? Wasn’t that the whole point?

Precedent, Bright Lines & Justice

Lawsuits are often disappointing to interested observers, even when their “side” wins. Lawsuits resolve disputes between parties. They only incidentally—and haphazardly—make law. Courts make law through precedent, which means a lower court cannot diverge from a “holding” of the court. By definition, trial courts, like the one that just heard Oracle v. Google fair use trial, cannot make law, since there are no courts below it. Still, decisions rendered by trial courts can still be powerful “persuasive” authority. Another trial court, faced with a lack of precedent, can read how other trial courts handled the question and say, “That looks like the right way to handle it.” They can also say, “No, that’s…

Coding as art? (From Oracle's slides used in its closing arguments.)

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Of Floods, Buses and Copyright Infringement: A Nashville Riddle

Implied “Transition Period” in Software Licenses? Don’t Count on It.

Here in Nashville, we have what might be called a so-so mass transit system. To be fair, Nashville’s layout isn’t very conducive to mass transit. It’s fairly spread out, the roads tend to meander, there are multiple commercial centers, those commercial centers aren’t always very easy to get to, and residential and commercial growth patterns have been in flux.

Still, Nashville has a bus system, the Nashville Metropolitan Transit Authority, which everyone calls the “MTA.” As you might expect, one of MTA’s goals is to make sure the buses run on time, which requires making sure the drivers are there to drive the buses, the correct buses are dispatched on the correct routes. It also involves monitoring how long the buses take between major stops. In 2007, MTA wanted a better system for communications, dispatching and tracking. It contracted with ACS Transport Solutions for this. ACS agreed to sell, install and configure all of the necessary equipment. This equipment required enterprise-level software to run it, and ACS also agreed to license the software to MTA.

For some reason, the software license was in an entirely separate contract called a “License Agreement.”…

May 2, 2010, Nashville, Tennessee. That's downtown in the distance. The MTA depot would actually be fairly close by, probably completely under water.

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Federal Circuit Feeds Us Some Humble Pie: Oracle v Google Reversed

Humble Pie Taste Like Sawdust but at Least it’s High in Roughage

It’s fair to say that I was a little bit invested in the district court opinion in Oracle v. Google. I really thought it was a great opinion, thought it really helped clear the air about the vexed issue of copyright protection for computer programs—and I said so, both in a published article, and in a multi-part blog post (starting here).

So when it became clear that the Federal Circuit Court of Appeals was set to reverse the decision, I had to resist getting defensive. While my Twitter feed exploded, mostly in outrage, at the actual reversal, I put off reading the decision until I could read it fairly. The Federal Circuit might have been reversed by the Supreme Court five times out of five this year, on the very subject (patents) it is supposed to be an expert on, but that doesn’t make it wrong. And just because I had publicly supported the now-reversed trial court opinion, doesn’t mean I was right.

Most of the criticism that I read had mostly to do with policy. In essence, they contended that the Federal Circuit to be legally wrong because APIs should…

Buttermilk_Pie

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Rick’s Copyright Course Final Exam: Part 2 of 3

Part II: Short Essays

Last time, I explained my philosophy informing the way I constructed the final exam I gave to my copyright class last semester at Vanderbilt University Law School (which happens to be where I went to law school), plus Part I of said exam which consisted of 12 short answers.

Here, now, is my annotated Part II, complete with my comments about how the essay topics should have been addressed.

Preliminary note: The students were presented with eight short-essay topics a week before the exam period began. Of those, I chose four, and each student chose three of those to answer. That’s why the topic numbers go 1, 2, 4, 7. So, on the one hand, the students got to prepare in detail. On the other hand, there were diminishing returns in over-preparing. I chose to do this because of the three-hour time constraint. The idea is that the students would be able to address the topics in less time if they were able to prepare for specific topics. As a side-benefit, they were also forced to prepare for a wider range of topics than could actually be crammed into a three-hour exam.*

* The idea came to…

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