Copyright, Licensing, and the 'First Screen'

Copyright, Licensing, and the 'First Screen'

Cass, Ronald A., "Copyright, Licensing, and the 'First Screen'".

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    One prong of the antitrust litigation against Microsoft Corporation challenges the terms under which Microsoft has licensed its Windows operating system to computer manufacturers (OEMs). Plaintiffs complain that the license agreements' requirement that the first screen to appear when customers initially turn on ("boot up") a computer display certain features common across all Windows-based platforms (the "first screen provision"), though seemingly within the ambit of normal copyright license agreements, violates the antitrust laws.

    This paper examines the first screen provision in the context of the law and practice respecting computer software licensing. The first section provides background on copyright. The second section explores the considerations relevant to licensing contracts. The third section addresses the intersection between antitrust and copyright licensing. The fourth section directly considers the first screen provision--what it does, what interests it serves, and what efficiencies it generates. A concluding section argues that, while the provision should pass antitrust muster, the process of examining such licensing provisions under the antitrust laws may do more harm than good.

    Although Microsoft (not unique among profit-seeking enterprises) no doubt seeks advantages in competing with rivals, the first screen provision assists Microsoft's efforts to define its copyrighted product, to reduced training costs to consumers, and to guard against degradation of its product or free riding by licensees. Principal-agent contracts--including licensing contracts--presumptively advance joint interests of the principal and agent, and the first screen provision can be seen in context as one component of a contract that (taken as a whole) efficiently responds to differences between interests that a licensor internalizes and those that motivate licensees. Antitrust analysis of principal-agent contracts, however, requires parties to parse particular contract terms in order to assess the efficiency effects (and the other effects on the market for software) of one or more particular contract terms. That analysis necessarily entails an artificial assignment of effects among contract terms that are not divorced from other parts of the principal-agent contract and is likely to be distorted from the considerations informing parties to the contracts. The paper discusses risks attending such analysis in the context of copyright licensing.

Facts on copyright

  • It appears publishers, rather than authors, were the first to seek restrictions on copying printed works. Given that publishers now obtain the copyright from the authors as a condition of mass reproduction of a work, one of the criticisms of the current system is that it benefits publishers more than it does authors. This is a chief argument of the proponents of peer-to-peer file sharing systems. It set out a rabbinical curse on anyone who copied the contents.
  • One might be able to obtain a patent for the method, but that is a different area of law. Compilations of facts or data may also be copyrighted, but such a copyright is thin. It only applies to the particular selection and arrangement of the facts, not to the particular facts themselves. In some jurisdictions databases are expressly covered by statute. In some cases, ideas may be capable of intelligible expression in only one or a limited number of ways. Therefore even the expression in these circumstances is not covered. In the United States this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. Merger is often pleaded as an affirmative defense to charges of infringement. That doctrine is not necessarily accepted in other jurisdictions.
  • The author of an unpublished manuscript or little-known publication, which is remarkably similar to a popular novel, will have an uphill battle convincing a court that the popular novel infringes the copyright in their obscure work. Taking some precautionary steps may help to establish independent creation and authorship. For example, when a web designer designs a webpage (based upon his own work) under a contract for services, the webmaster owns the copyright in at least the underlying code of that website.

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