Mark L. Gordon


A conflict exists between copyright law and antitrust policy. The conflict arises because pursuant to the Copyright Act, a copyright owner basically has a monopoly on the work's circulation throughout the market. Copyright protection benefits the owner and the public. Antitrust laws have the same goals. However, the antitrust laws balance these goals with competition in the market. Furthermore, computer programs complicate matters because the programs create a different problem than with other types of works. The Copyright Act states that "expression" is copyrightable and "ideas" are not. Computer programs, however, combine expression and ideas. Three types of copying are identified: literal, intermediate, and non-literal. Literal is a violation of a copyright owner's rights. Intermediate is an initial literal copying that is not similar to the final product. Non-literal is copying the structure of a work. Courts had devised different tests in interpreting what is protected under the Copyright Act. These tests included extrinsic/intrinsic, substantial similarity, and the Altai text. Courts use the Altai test to narrow the scope of copyright protection because each step is limiting. This test involves abstraction, filtration, and comparison. Abstraction is breaking down a copyrighted program into parts. Filtration examines each part and separates ideas and expressions. Comparison contrasts whatever is protected and determines its similarity. In conclusion, caselaw has narrowed the scope of copyright protection for non-literal copying of computer programs. This trend results in a lessening of the conflict between copyrights and antitrust policy in regards to non-literal copying of computer programs.