Selected Papers
A Digital Electronic Paradigm
For Understanding Copyright Protection
For Software
by Steven W. Lundberg
I. The application of copyright protection to software can be understood by analogy to hard-wired electronic devices.
A. Hard-wired and software technologies are interchangeable and are functionally equivalent. They should be treated substantially the same in terms of the scope of rights afforded by copyright. Otherwise, engineering decisions will be undesirably influenced by the disparity of protection afforded to one technology over the other.
B. This paper introduces a model for viewing as interchangeable software and hard-wired digital electronic devices. This model illustrates how software and hard-wired digital electronic devices are technologically equivalent, and how copyright should be applied to software so that an equivalent scope of protection is provided to software and hard-wired electronics.
II. One type of Digital Electronic Device (DED) is a Hard-wired Digital Electronic Device (HWDED). A HWDED is a device consisting of electronic circuits which process electrical signals in digital form. A HWDED contains no software.
A. The simplest HWDED is a transistor. It receives one or more input signals and produces an output signal.
B. Transistors can be combined to form more complicated HWDEDs. For example, using boolean logic an electronic AND gate produces a logical output of "1" when the input signals are all "1's", and an output signal of "0" when any one input is a logical "0".
C. Simple logic circuits such as AND gates and Flip-Flops are used to form more complex electronic devices.
D. All HWDEDs include one or more input terminals to which electrical input signals are applied, and one or more output terminals which carry electrical output signals out of the HWDED.
III. A HWDED can be modelled as a "black box". The HWDEDs used in this paper for the purpose of analysis receive input data, manipulate or transform the input data in response to input control signals, and produce output data. This functionality is the essence of the utility of HWDEDs.
A. A HWDED will include all of the following:
1. one or more data input terminals for input data signals;
2. one or more control input terminals (connected to switches for example) for input control signals; and
3. one or more data output terminals for output data signals (the output data can be control signals).
B. Many integrated circuits are HWDEDs.
C. Every HWDED can be said to have one or more Electronic Functions (EFs) which manipulate or transform the input data to output data (Data Transformations). If there are multiple EFs, they may be executed in series or in parallel.
IV. A HWDED can be constructed to be "programmable". Indeed, strictly speaking, most sophisticated integrated circuits (quite apart from microprocessors) are programmable in that their EFs can be changed or controlled by altering the combination of input control signals applied to the integrated circuits.
A. For example, a memory integrated circuit might operate in a first mode in response to one set of input control signals, and in a second mode in response to a different set of input control signals. In the first mode, the memory circuit might output data in "series", while in the second mode data might be output in "parallel." The EFs of the integrated circuit are therefore dynamic (as opposed to static) in that they change over time.
B. The individual EFs of a programmable HWDED can be combined to provide more extensive, or complicated, Data Transformations.
V. An all-hard-wired microprocessor is a highly versatile and sophisticated HWDED that can dynamically alter its EFs in response to program instructions supplied to it from an external source (such as a memory or disk drive). A microprocessor usually has a number of EFs that can be selectively activated by the instructions of a computer program. One instruction might cause the microprocessor to activate the EF that reads data from input terminals and stores the data in a register, while another EF might instruct the microprocessor to add numbers stored in two registers in the microprocessor. Ultimately, the EFs are combined to attain a Data Transformation.
A. A programmable HWDED that is acting under the influence of a computer program can be said to be Programmed. A Programmed HWDED is for all purposes electronically equivalent to a non-programmable HWDED, except that the EFs of a Programmed HWDED usually change dynamically over time.
B. Ultimately, the Programmed HWDED attains a Data Transformation just like a non-programmable HWDED, with EFs.
VI. Since the EFs and Data Transformations of a non-programmable HWDED are not copyrightable, then one would expect that the EFs and Data Transformations of a Programmed HWDED also should not be copyrightable. The question is, how can copyright be applied to protect computer programs while leaving the EFs and Data Transformations unprotected?
VII. At its core, every computer is contructed from combinations of HWDEDs to provide a Core Programmable Computer. (Note that one or more of the constituent HWDEDs may themselves be programmable). This Core Programmable Computer has a unique set of EFs.
A. These EFs are used or activated using a Computer Language that comprises electronic symbols in the form of electrical signals which, when applied to the Core Programmable Computer, activate an associated EF.
B. A core program, such as an Operating System program, can program the Core Programmable Hardware Computer to provide a First Programmed Computer that in turn has its own unique set of EFs. This First Programmed Computer's set of EFs can be activated by an Application Program using yet another Computer Language.
C. An Application Program itself can use the EFs of the First Programmed Computer to create yet another set of unique EFs that can in turn be activated using yet another Computer Language that activates these EFs, and so on, if so desired.
VI. Any Programmed Computer, whether at a First or higher level of programming, can be implemented entirely with non-programmable HWDEDs. I.e., the EFs of any Programmed Computer can be functionally replicated without any software components.
IX. To properly apply copyright to computer programs, it is essential to view software using a Programmed DED model. Every computer program, no matter how large or small, can be viewed using the Programmed DED model.
A. An application program, for instance
X. A Digital Electronic System (DES) is herein defined as an electronic system constructed of DEDs, such as integrated circuits, as are most electronic systems. A DES has a set of EFs formed by the combination and interaction of the DEDs making up the DES. For instance, a stereo system or computer are types of DESs constructed from integrated circuits or DEDs.
XI. A DED or DES can be hard-wired or programmable.
A. The EFs of a Hard-Wired DED or DES (HWDED or HWDES) cannot be readily changed. The circuits of a HWDED or HWDES are permanently or semi-permanently fixed in one configuration to give the desired EFs.
B. A programmed DED (PDED) or DES (PDES) reads "program data", or "software" stored either in the hardware of the device or externally to it. A PDED or PDES will have the EFs which are specified in the software. By changing the software, the EFs of the PDED or the PDES can also be changed.
1. Some of the simplest "programs" might consist of setting several "bits" in a register (memory) of a PDED. The PDED will have a different EFs depending on the status of the bits.
2. Sophisticated programs consist of many thousands of bits of data (organized as statements or instructions) that a PDED or PDES may read in sequence.
C. Any given EF can be implemented using either a HWDED or a PDED, or a combination of both.
XII. Where an EF is implemented in a HWDED:
A. The blueprint for this HWDED is copyrightable.
B. It is axiomatic in copyright law that the neither the HWDED nor the EF is copyrightable.
C. It is axiomatic that one can copy the HWDED or EF without infringing the copyright in the blueprint.
XIII. Where an EF is implemented in a PDED or PDES:
A. The blueprint for the hardware of the PPDED or PPDES is copyrightable.
B. It is axiomatic that the hardware itself is not copyrightable.
C. It is axiomatic that one can copy the hardware without infringing the copyright in the blueprint.
D. The software is copyrightable.
E. Under Section 102(b) of the Copyright Act, the EFs of the PDED or PDES should not be any more copyrightable for a HWDED.
F. Under Section 102(b), one should be able to copy the EFs of the PDED or PDES without infringing the copyright in the software.
XIV. A computer (such as a PC or Mac) can be programmed to provide a PDES.
A. This PDES, like all others, includes:
1. one or more data input terminals for input data signals;
2. one or more control input terminals (connected to switches for example) for input control signals;
3. one or more data output terminals for output data signals; and
4. one or more control output terminals for output control signals
XV. Copyright in software does not directly protect EFs; protection for EFs is only obtained indirectly by software copyrights.
A. EFs is only attained by execution of software by a GPEC.
B. Therefore, protection of software does not directly protect EFs.
XVI. Copyright should not be extended to grant direct protection to EFs.
A. EFs itself should not be subject to copyright.
B. To the extent EFs is protected by copyright, it should only be protected based on the copying of software, and not the EFs obtained when the software is executed.
XVII. For every computer program or portion thereof, there is a corresponding EF.
A. If this EF is defined in a way that does not reveal the form of the computer program used to attain it, then this EF is a "Non-Informing" EFs (NIEF) and serves as a definition of uncopyrightable subject matter.
B. If you only copy NIEFs, then you have not infringed the associated computer program, since you have only copied EFs and did not have access to the associated computer program.
XIII. Many if not most computer programs of commercial significance can be modelled as a interrelated group of EFs and corresponding VDEDs.
A. For instance, there may be a main software routine (one EF and VDED) that calls various other subroutines (other EFs and VDED'). These software EFTs may call or use HWDED's.
B. These EFs/VDEDs, taken as a whole, form a Global EF (GEF) and Global VDED (GVDED) which defines how the program, as a whole, produces certain outputs in response to certain inputs.
C. Individual EFs/VDEDs within the program may receive inputs from other EFs/VDEDs or from outside the program, and may produce outputs to other EFs/VDEDs or to other devices or EFs/VDEDs outside the program.
last updated 2-10-96
