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New York University School of Law




Drawing on recent work by Dan Burk and Mark Lemley in the patent context, this paper explores the extent to which courts have adapted pre-existing copyright doctrines to the special case of computer software. We argue that a number of courts have, as has been widely recognized, significantly adapted copyright doctrines to deal with special features of the computer software market. We further argue that these adaptations have, by and large, positively sought to strike a balance between the copyright act's dual goals of incentive and access. Despite this general trend toward adaptation, however, we point to a handful of instances in which courts and legislatures have adopted a more wooden approach to software copyright questions. Given the nuanced nature of copyright law's underlying goals, we contend that some level of flexibility and adaptation is critical in the software context, where network effects, interoperability, and functionality play a prominent role. We suggest that copyright law should-and indeed must-have some vehicle for considering these unique features of software markets, and we recommend a number of changes to maintain the more flexible, policy-lever approach to software copyright law.

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