Hastings Law Journal


Computer software is somewhat of a problem child for intellectual property law. Courts and legislatures have struggled to find a balance between encouraging innovation in software development and avoiding undesirable digital information monopolies. Although neither the patent nor the copyright system has provided a particularly satisfactory paradigm for software protection, copyright arguably creates more insidious undercurrents in today's marketplace. If lawmakers do not act expeditiously to stem the tide of copyright protection, the software industry could be facing an intellectual property grab of great proportions which might ultimately impede innovations in software development.

This Article argues for a shifting of the paradigms employed for software protection. In particular, copyright law should be scaled back and, to the extent it is retained, the doctrines of merger and scenes a faire should be more clearly developed to avoid unjustifiable information monopolies and questionable market practices. Lawmakers also need to recognize that, due to recent advances in encryption technology, trade secrecy is now a more viable candidate for software protection than in the past.

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