by Jay Dratler

This article analyzes the state of the law protecting intellectual property rights in computer software, discusses current business practices used in attempting to deal with that body of law, and proposes legislative solutions to facilitate commerce in software. Although there are aspects of copyright law that impede fluid com- merce in software, notably the first-sale doctrine discussed below, this article focuses primarily on the problems associated with trade secret law.
The second section of this article gives an overview of protection of computer software by patents, copyrights and trade secret law. The third section discusses the significant gap in protection of software between patents and copyrights. It then discusses how trade secret law, albeit imperfectly, fills that gap. The fourth section discusses the traditional requirements for trade secret protection, their applicability to computer software and their inappropriateness to the software business as currently conducted.
The final section proposes legislative solutions to the problem of a legal system that seems not to fit the needs of the software industry.