Copyright Laws Vs. Tech Security
A software innovator may have to decide: copyright or patent? One of the considerations in that decision is the extent to which one form of protection or the other actually does protect.
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Patents: Shorter Duration but True Monopoly
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Copyright protection lasts longer: life of writer plus 75 years. Intellectual property is less secure if you rely on copyright than if you can secure a patent. Patent protection expires 20 years after the date of filing, or 17 years from the date of issue. Nonetheless, during that brief period it grants a true monopoly.
Independent Creation Defense
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"It's just a coincidence we're all so similar, Your Honor." One difference is that there is an "independent creation" defense regarding copyright. If the second person to create the same or a substantially similar work can show her creation was independent of the first person's, copyright will not bar her use of it.
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Burden of Proof
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The defendant must generally produce evidence of independent creation, such as testimony that tracks the creative process. Once she presents a prima facie case for independence, the burden shifts back to the plaintiff to rebut it.
Fair Use of Software
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Copying, even for educational purposes, has limits. Another difference from patent law is the broad "fair use" doctrine--a green light for certain limited uses of copyrighted material that are favored by public policy, especially education.
Skepticism About the Fair-Use Doctrine
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How far, though, does the fair-use doctrine extend in the case of software? This is a matter of continuing controversy. The General Counsel of The University of Texas System wrote: "[C]opying an entire software program even for a nonprofit educational use would be hard to justify as a fair use...."
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References
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