Encouraging Software Reuse

Abstract

Over the last fifteen years, the primary means of legal protection for computer software has shifted from copyright to patent. In this article, Professor Mark A. Lemley and David W. O'Brien argue that one unanticipated benefit of this trend may be to encourage software reuse. They note that computer programmers traditionally reinvent software components, coding each new program from scratch rather than buying and reusing existing components. This inefficient process operates in stark contrast to common practice in other engineering disciplines. Lemley and O'Brien argue that copyright law encourages reinvention and discourages the development of a market for tradeable software components because it allows competitors to appropriate the value of a new software invention without payment to the original inventor, but forbids competitors from copying the computer code implementing that invention. As a result, competitors copy others' inventions and ideas but write their own code to avoid infringing copyright. By contrast, patent protection forces competitors manufacturing any product incorporating the invention to obtain a license from the patent owner. Lemley and O'Brien maintain that the trend toward reliance on patent law may lead to increased licensing of both patented ideas and their implementing code, paving the way for an expansion of trading and reuse of software components.