Riddle me this, Riddler: what does the design of a center entrance colonial house have to do with complex computer software?
A lot, it turns out, if you are interested in the borders that should attach to IP rights so as to best balance the need to encourage the creation of new products against the risk of stifling innovation. Anytime one renders a design or technical development exclusive to one owner, such as when an inventor obtains exclusivity by means of a patent or an author obtains it by means of holding the copyright, we encourage the original owner to exploit that product, but preclude others from doing the same. When we do that, it is important to create a structure that gives enough protection to the original inventor to motivate people to create new products, but not so much protection that it discourages others from creating related advancements; if we get that balance wrong, we impede the technological advancement that is the original purpose of granting exclusivity in the first place.
I was thinking of this today because of an odd correlation that popped up in my reading. I have litigated copyright infringement cases both over plans for commercial architecture and over very complex computer code, each time defending someone who had created and sold a new product but was charged with allegedly having infringed upon the prior copyright protected work of a prior author (in one case another architect, in the other a different software company). While I effectively won both cases – to the extent that very favorable settlements count as wins in a world in which 99% of cases never see a trial – the more interesting point is that I prevailed on both cases on essentially the same theory, which was that the similarities between my client’s work (whether the design for the building or the code for the software) and that of the holder of the copyright on the prior work concerned aspects of the prior author’s work that copyright law does not protect. Copyright law, through various means – such as the merger doctrine and others – does not protect common or universal design elements, nor does it protect substance that, in essence, cannot be designed around, such as certain problems in software coding that can only be solved in very limited ways. Copyright law allows later-in-time creators to make use of those types of elements in their work (whether that be the design of a house or the design of high value software) even if they were also used in previous, otherwise copyrightable work. In this way, copyright law successfully draws the line between encouraging innovation through the grant of exclusive ownership and corresponding rights of exploitation, on the one hand, and the risk, on the other, of stifling innovation through that grant of exclusivity; these doctrines keep open for other innovators the use of certain elements, whether lines of software code or aspects of building design or other forms of expression, without which further advancement of the art in question is not possible.
This is one of the great, somewhat hidden achievements of American copyright law, one that is worth bearing in mind, and perhaps emulating to some extent, in the world of patent law, as we try to come to grips with the patent troll phenomenon and the runaway nature of patent infringement litigation in this day and age. The trick to solving those problems in that area of the law right now is figuring out how to find that sweet spot – the one that copyright law has, to a large extent, already found – between granting enough exclusivity to drive innovation but not so much that it simply generates excessive patent infringement litigation and gives rise to mills full of patent trolls.
So the answer to the riddle that commenced this discourse lies in this excellent article on the manner in which doctrines limiting the scope of copyright protection just defeated an architect’s claim of copyright infringement based on the architect’s use of certain historical and consumer driven elements in a design for a classic New England colonial home. These same doctrines were, as I mentioned before, the basis for my prior representations of both architects and computer software programmers, with the doctrines generating good results in both circumstances. I liked how clearly the article articulated the use and role of these doctrines in the context of home design, and was immediately struck by the fact that you could replace the references to architect and houses with references to programmers and software and have an equally accurate article. The same copyright doctrines, in my experience, control the outcome of both litigation over building plans and over computer software. That consistency across the board is one of the things that makes American copyright law great, both intellectually and as a practitioner, and is what makes it possible for competitors to plan ahead and understand when they can, and when they cannot, touch on prior work.