The various circuit courts of appeal have been unable to agree on the appropriate method of determining when one computer program infringes the copyright in another computer program. This article traces the differences among the circuits, proposes a model to explain what courts are doing, asserts a set of factors that simplify the analysis of determining copyright infringement, and tests those factors against seemingly irreconcilable cases. Finally, the article applies the analysis to unresolved computer software issues of today in order to predict likely outcomes.
Michael Risch, How Can Whelan v. Jaslow and Lotus v. Borland Both be Right? Reexamining the Economics of Computer Software Reuse, 17 J. Marshall J. Computer & Info. L. 511 (1999)