Hastings Communications and Entertainment Law Journal


In Apple Computer Co. v. Franklin Computer, Inc., 714 F.2d 1240 (3d Cir. 1983), the United States Court of Appeals held that computer programs expressed in object code are copyrightable. Given the indecipherable nature of object code, courts are now faced with the difficult problem of determining when such copying has occurred. The author analyzes one trial court's approach to this problem found in SAS Institute, Inc. v. S&H Computer Systems, 605 F. Supp. 816 (M.D. Tenn. 1985). The author criticizes the court's method, arguing that its approach relies too heavily on competing expert testimony, and may extend to copyright holders an unwarranted monopoly on underlying ideas expressed in the form of programming techniques. Finally, the author suggests alternatives to the approach of the SAS Institute court.