Protecting Computer Software : After Apple Computer, Inc. V. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983), Does Copyright Provide the Best Protection?

During the last two decades, the foundation of the United States economy has shifted from primary dependence on labor-intensive, manufacturing industries to dependence on the development of advanced technology. This shift has been especially apparent in the field of computers. The development of computer technology has required, and continues to require, tremendous capital expenditures. As part of the efforts to protect these investments, there has been a resurgence of interest in the field of intellectual property law. Traditionally, patent law has been invoked to protect technological innovations. While the electronic devices and circuits that comprise the hardware of a computer are proper subject matter for patent protection, the software that is utilized to operate a computer represents subject matter at the periphery of patent law. The increasing importance of software as a basis for advances in computer technology has necessitated the exploration of other areas of the law as possible sources of protection. Although trade secret law has been the traditional means of protecting software, the wide dissemination of many types of software has greatly hampered the practicability of trade secret protection. As a result, the use of trade secret law is being increasingly displaced by the use of copyright law to protect software. Moreover, in light of the decision by the Court of Appeals for the Third Circuit in Apple Computer, Inc. v. Franklin Computer Corp., which extended copyright protection to all forms of software, copyright law may provide the best protection currently available. This article will discuss the existing state of patent and trade secret law with regard to computer software, analyze the Apple Computer decision, and assess the 'copyrightability' of software