Editors Note: Caroline Horton Rockafellow is a member of the Research Triangle Park law firm of Daniels Daniels & Verdonik, P.A.Could software copyrights possibly be unconstitutional?

That’s what Greg Aharonian, an intellectual property consultant, would like for us to believe.

In early December, Aharonian filed a complaint in the United Stated District Court for the Northern District of California seeking to have the District Court declare copyright protection for software unconstitutional. Aharonian’s complaint argues that copyright protection for computer programs is a violation of two provisions in the United States Constitution. He also asserts that unpatented source code is a commercial idea that should be open to free speech and inquiry under the First Amendment to the Constitution.

While this is not the first time opponents of software copyrights have argued that copyrights are not an appropriate form of intellectual property protection for software, this case is unique because of both its constitutional challenges and Aharonian’s notoriety.

Who Is Greg Aharonian?

Greg Aharonian has been a controversial figure in the intellectual property world for some time. He is most commonly known for his Internet Patent News Service, which targets the intellectual property world (patents, copyrights, the United States Patent and Trademark Office, patent attorneys and corporations) much in the same way the Drudge Report targets the political world.

Aharonian has also launched a “patent-busting” website designed to assist users in invalidating patents, particularly software patents, and he currently makes his living by assisting his clients in seeking to invalidate software patents. While his attack on software copyrights is not new, Aharonian is clearly better known for his antagonistic stance against software patents.

It is particularly interesting to note, given Aharonian’s occupation and public position on software patents, that one argument included in his complaint is that the patent system would be a better alternative for protecting the intellectual property inherent in software and thus promoting software progress.

The Complaint

Aharonian’s complaint is based largely on claims under the United States Constitution, particularly the due process clause of the Fifth Amendment and certain procedural requirements in the Constitution itself.

The Fifth Amendment to the Constitution provides that no person shall be deprived of life, liberty or property without the “due process of law.” Generally, the due process clause is intrepreted to guarantee certain rights related to trials, taxes and the taking of property. It also has been intrepreted to mean that laws must be written so a reasonable person can understand what constitutes criminal behavior.

Aharonian argues that the law does not provide a clear definition for software copyright and thus there is no notice of what is an idea (not protectable by copyright) versus what is a particular expression of an idea (protectable by copyright). In other words, there is no notice as to what elements of software are subject to copyright protection. Aharonian goes on to argue that since there is a failure to provide appropriate notice through definitions, a reasonable person would not be able to understand what actions might violate the criminal provisions of copyright law, and thus there is a violation of the due process clause.

While Aharonian does have a point that the definition of software copyright and what elements of software are eligible for protection under criminal copyright law can be somewhat confusing, as has been demonstrated in varying interpretations from our courts, the fact is that even though there may be some conflicting and even confusing case law, it does not mean that this confusion rises to the level of violating the due process clause.

Although Aharonian’s argument is conceptually interesting, it is not likely to be a successful argument.

The complaint also argues that software copyrights violate a provision of the Constitution that requires every bill which has passed the House and the Senate be presented to the President for his signature before it becomes a law. Aharonian’s argument is that because the copyright statute itself (which was presented to the President as required by the Constitution) does not explicitly provide for software in the list of copyrightable subject matter, the rights have not been established as required by the Constitution.

While also an interesting argument, the fact is that statues rarely address every possible scenario and as a result we look to our courts to interpret statutory intent and meaning, which is what they have done by interpreting the term “literary work” from the copyright statute to include software. If all interpretation of statutory authority were to be considered a violation of the Constitution, we would find that many if not most of the rules and regulations that we follow and rely upon would be viewed as unconstitutional.

Copyrights vs. Patents

Aharonian also goes on to assert that, for the purpose of protecting the intellectual property inherent in software and thus promoting software progress, patents would be the better choice. However, while patents are an excellent form of intellectual property protection for software, copyrights and patents protect two independent aspects of software.

Copyrights protect the written expression of the software (i.e. the code) and patents protect the idea inherent in the software. Not all software is eligible for patent protection, and even if a particular software product is eligible for patent protection, not all creators are willing or able to expend the time and resources necessary to secure a patent. In many cases, a simple cost benefit analysis would not justify patent protection. At the same time, if creators are not able to protect their work product from unlimited use and distribution (which is a right under copyright law), it clearly reduces the likelihood that individuals and entities will expend the time and effort necessary to move technology, particularly the software industry, forward.

Regardless of the merit of Aharonian’s claims regarding the constitutionality of software copyrights, it is even more difficult to agree with his assertion that patents are a suitable substitution for the protections enjoyed through copyright law.

Economic Harm

In the formative years of software development, there was significant debate as to the appropriate form of intellectual property protection for software. At one time, there was even a movement to promote an independent type of intellectual property protection for software, much like there is an independent type of protection for mask works.

Regardless of how we arrived at this point, the fact is that the entire software industry relies on copyright protection. Whether this is the best form of protection for software, entire industries have been built around the concept of innovative creation being protected by copyright law. Even the open source movement, which favors a system where all software users have access to source code, still relies on and enjoys the benefits of copyright protection.

Consider this: If open source companies did not value copyright protection, wouldn’t they simply make all software public domain?

That clearly is not what open source is all about. If the source code became public domain, any user could do anything with the code, including incorporating it in a proprietary product, thus defeating the entire purpose of open source. Companies that are built around the open source philosophy rely on licenses that require continued and open distribution of certain derivatives works.

If the code did not remain open, the business concept behind open source would be limited and these companies would not enjoy the commercial success that they do today. Thus, copyright protection is critical for all types of revenue-generating software. Accordingly, removal of copyright protection from software would have a significant negative impact on our overall economy.

Although Aharonian’s complaint provides some interesting arguments that may be worthy of further discussion, it is more of an academic argument than a legal argument. The constitutional claims are interesting, but not fully supported with thorough legal arguments. In addition, if this case were to proceed, it is highly probable that the powerful software industry will take an extremely proactive role to prevent any erosion of copyright protection.

More important is the fact that the complaint does not show any real, immediate and direct damages for Aharonian; rather, the complaint seeks an advisory opinion from the court. Courts are in the business of ruling on actual cases and controversies and not of issuing advisory opinions, and thus the complaint is likely to be dismissed by the court.

Accordingly, it appears likely that the complaint will be dismissed without even any consideration by the court of the merits of the constitutionality claims. Regardless, the fact that the complaint has received so much publicity is evidence that these issues will likely be the subject of continued discourse and debate within the intellectual property community for some time to come.

Daniels Daniels & Verdonik, P.A. has been serving the legal needs of entrepreneurial and high technology clients for more than 20 years. Caroline Horton Rockafellow is a licensed patent attorney who works primarily in the areas of technology deals, intellectual property transactional work and licensing. Questions or Comments can be sent to crockafellow@d2vlaw.com.