Copyright and Intellectual Property: A look at the Facebook law suit

Many students, and others who spend their days looking for ways to procrastinate, probably have a face book account. Many may recall the spread of the news that face book is going to be shut down due to law suits stemming from Mark Zuckerberg's fellow students, Tyler Winklevoss, Cameron Winklevoss and Divya Narendra, claiming that Zuckerberg had taken code he had written for ConnectU to launch his rival site.

The background to the lawsuit is this: Mark Zuckerberg, as a student at Harvard University, joined with three classmates who were working on a new idea called ConnectU, a set of interlinked social networks for students at a single college. Zuckerberg did some work for them, but then launched his own website — what's now known as Facebook. His three former classmates than launched an action against Zuckerberg on the 2 September 2004 for the alleged theft of their idea - and argued breach of fiduciary duty, breach of contract, and fraud amongst other things. While the case appears to be settling out of court (see the New York Times article here), an obvious legal issue arises from this case: can code be considered intellectual property in the same way that other literary works are? Can it be protected by a copyright?

Now the claim that code can be protected intellectual property is not new. In the case of Computer Edge v Apple, it was held that code was a literary work and was therefore was not able to be protected by copyright under Copyright Amendment Act 1984. At the time, it was unlikely that the legislature could have envisaged computer programs when they enacted this act, however the Section 10 of the Copyright Act now states that a computer program is subject to copyright protection. It appears that a computer program (and presumably the code contained within it) are protected by copyright.

The question also arises as to what a substantial reproduction would entail: could stealing a single line of code constitute a breach of copyright? The court in Autodesk v Dyason there was a computer program of 20 000 lines long. A string of data which was 16 bytes long, which was said to be essential to the execution of the program, was taken by a competitor to create a similar program. The question for the court was whether this was substantial. They applied a but for test: but for this part of the program, would the program still exist? However, this decision was questioned in Powerflex services v Data access, where it was held that the test should look at the quality of the part; if the but for test was used this would result in rediculous outcomes as even the removal of a semi colon could be disastrous for a computer program (with the outcome that even a semi colon could be protected by copyright!).

It is arguable as to whether Zuckerberg's classmates could have gotten up on a copyright argument, as it should be recognised that these decisions were heard in Australia. It appears that they did not consider the possibility of breach of copyright (however, another line of thinking is that if they could show breach of fiduciary duty, they could be entitled to such equitable remedies as account of profits). It is interesting to note that a similar situation arose in the Apple vs Microsoft war to release an operating system, Steve Jobs showed Bill Gates his idea for a graphics based OS, which was ripped off in the release of Microsoft's own Windows (well from the portrayal in Pirates of Silicon Valley, which while written without interviews with either Jobs or Gates, was well researched by writer Martyn Burke).

However, if anything, Facebook and other such cases have shown that perhaps that copyright of code is not productive for entrepreneurial pursuits. Sharing and building on others code could be more beneficial, as shown in the Open Source community. Furthermore, what is boils down to is that Zuckerberg had a better business model that the ConnectU founders: it is questionable as to whether their site would have gone to the same heights as FaceBook. The same goes for Microsoft and Apple: it is arguable that Bill Gates had the better business model to market the graphics based operating system.