CNI-COPYRIGHT Moderator (listmgr@cni.org)
Wed, 17 Apr 1996 10:17:47 -0400 (EDT)
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From: CNI-COPYRIGHT Moderator <listmgr@cni.org>
Message-Id: <9604180457.AA16083@a.cni.org>
Subject: Re: Circuit Board Designs
To: cni-copyright@cni.org
Date: Wed, 17 Apr 1996 10:17:47 -0400 (EDT)
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[1]
From: "Micah D. Stolowitz Esq." <micah@TechLaw.Com>
Date: Wed, 17 Apr 96 10:17:47 -0700
Subject: Re: Circuit Board Designs
(jumping in the middle of this thread)
>
> Well, here's the rub. A printed circuit board layout (the electrically
> conductive tracings that go from component to component) are 2-D. I
> still don't think they're copyrightable. But I'd love to be proved
> wrong. Thanks. --Jim Palmer
Not so fast. First of all, PCB (printed circuit boards) are not 2-D
any more. Most boards today have 3,4, 6, heck even 12 layers. Numerous
interconnections are formed laterally and vertically; so you really
have a 3-D work. It's a very complicated process to design (and build)
multi-layer boards. My first reaction to the copyright question is the
obvious one: it's all functional -- so no protection. But there are
many (often millions) of ways to layout a circuit. A good deal of
subjective judgment is involved; just ask a board designer.
For another example, think about EDA (electronic design automation)
tools that do integrated circuit element "placement and routing". (You
might analogize loosely to designing a city layout of buildings (circuit
elements) and streets (interconnections). In both cases, functional
considerations are paramount, but there is room for creativity.)
Placement and routing tasks take pentium(tm) workstations DAYS to
complete. Really. Often human intervention is required to converge to
a solution. One could argue that a whole bunch of choices are made
along the way, and that the creative talent of the designer very much
contributes to the unique design that results. Giving this only 5
minutes of deliberation (I get paid for hourly work), I would argue
for THIN protection, i.e. a literal, exact copy of a PCB or ASIC layout
should be infringement.
-- Micah Stolowitz
<micah@techlaw.com>
[2]
Date: Wed, 17 Apr 1996 11:31:12 -0700 (PDT)
From: Terry Carroll <carroll@tjc.com>
Subject: Re: Circuit Board Designs
On 16 Apr 1996, Martha Luehrmann wrote:
>
> I am reprinting here a couple of notes from another maillist, Techno-L,
> that is primarily composed of technology transfer people in universities,
> government, and industry. I hope your collective brilliance can help us
> out.
. . .
> Is it possible to copyright the layout for a printed circuit board and
> charge royalties for each circuit board manufactured?
A PCB layout may at first appear to qualify as among the "pictorial,
graphic and sculptural works,' as defined in section 101 and specifically
listed as copyrightable on section 102(5). However, any copyright in
such a work would, in this case, be significantly attenuated by the
restrictions put on such a copyright by the section 101 definitions of
PG&S works and of "useful article."
That a PCB design may be within the definition of a PG&S work comes from
the initial sentence of the definition of PG&S works:
"Pictorial, graphic, and sculptural works" include two-dimensional
and three-dimensional works of fine, graphic, and applied art,
photographs, prints and art reproductions, maps, globes, charts,
diagrams, models, and technical drawings, including architectural
plans. . . .
However, what the first sentence giveth, the second taketh away:
Such works shall include works of artistic craftsmanship insofar
as their form but not their mechanical or utilitarian aspects are
concerned; the design of a useful article, as defined in this
section, shall be considered a pictorial, graphic, or sculptural
work only if, and only to the extent that, such design incorporates
pictorial, graphic, or sculptural features that can be identified
separately from, and are capable of existing independently of, the
utilitarian aspects of the article.
The PCB layout is clearly a design for a useful article, not only as a
matter of common sense, but under the statutory definition:
A "useful article" is an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the
article or to convey information. An article that is normally a
part of a useful article is considered a "useful article."
Under the PG&S work second sentence, then, copyright will not extend to
the utilitarian aspect of the PCB design, which is really what you're
trying to protect.
Some cases that discuss the interplay of protection for such works while
maintaining the unprotected status of the utilitarian aspects include:
- Mazer v Stein, 347 U.S. 201 (1954) (copyright in a lamp, decided
under the 1909 Act, but is probably the seminal case in this area);
- Kieselstein-Cord v. Accessories By Pearl, Inc., 632 F.2d 989 (2d Cir.
1980) (copyright in belt buckle designs);
- Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir.
1985) (copyright in mannequins);
- Brandir Int'l v. Cascade Pacific Lumber, 834 F.2d 1142 (2d Cir. 1987)
(copyright in a bicycle rack).
An excellent law review article on this topic is Professor Robert
Denicola's "Applied Art and Industrial Design: A Suggested Approach to
Copyright in Useful Articles, 67 Minn. L.Rev. 707 (1983). Professor
Denicola's suggested test was adopted by the Second Circuit in the
Brandir case, and I believe that it is still the law of the Second
Circuit.
--
Terrence J. Carroll
Attorney at Law ph: 415/843-5090
Cooley Godward Castro Huddleson & Tatum fax: 415/843-0663
Five Palo Alto Square email (office): carrolltj@cooley.com
Palo Alto, CA 94306-2155 email (personal): carroll@tjc.com
[3]
Date: Wed, 17 Apr 1996 20:02:33 -0400
From: SJamar@aol.com
Subject: Re: Circuit Board Designs
The semiconductor chip protection act protects maskworks for,
naturally enough, semiconductor chips. It does not protect circuit
boards. The failure to include circuit boards in that act and the
failure to include circuit boards in any of the copyright revisions
in the last twenty years argues, to me, against coverage.
Circuit boards are utilitarian works and it is the utility one seeks
to protect, not the artistic expression of that utility. Concepts
of merger and external efficiencies would tend to make circuit boards
not copyrightable.
I am unfamiliar with the 2-D, 3-D distinction being meaningful in
these categories.
If one wanted to frame the circuit board and present it as a work of
art, then it could be copyrighted as a work of art. But I doubt that
this dodge would work for a "real" circuit board. But it probably
would protect the screen background or wall hanging from being copied
exactly.
There is a recent case, Bateman v. Mnemonics, 1996 WL 128141 (11th
Cir.(Fla.) Mar. 22, 1996) which seems to suggest that such circuit
diagrams would be utilitarian works. That case involved someone
making a circuit from a software flow chart or something like that.
I've not read it recently. It would not completely answer the
question, in any event, because of the procedural posture of the
case. But I would not expect there to be a copyright for your design
in the 11th circuit.
Cheers,
Steven D. Jamar
Assoc. Prof. & Dir. LRW Program
Howard University School of Law
sjamar@law.howard.edu or sjamar@aol.com
"Those who say it can't be done should not interrupt those who are busy
doing it." Chinese Proverb
[4]
Date: 17 Apr 1996 17:28:13 U
From: "Martha Luehrmann" <Martha_Luehrmann@macmail2.lbl.gov>
Subject: Copyright of Printed Circui
> On Tue, 16 Apr 1996, "James R. (Jim) Palmer" <pmr@ornl.gov> wrote:
>
> Is it possible to copyright the layout for a printed circuit board and
> charge royalties for each circuit board manufactured?
and cited:
> "Intellecutal Property Law: Commercial, Creative and Industrial Property,"
> (Law Journal Seminars - Press, New York), Jay Dratler, Jr.
I shared the message with Dr. Dratler of the University of Hawaii's
William S. Richardson School of Law and got this response:
Your correspondent is essentially right. Although the circuit boards'
plans are probably protected by copyright, the copyright is weak,
because the boards are useful articles under section 101, and copyright
does not protect industrial design. Even if the plans are protected,
they are protected only in their aesthetic aspects, and then only to
the extent that their aesthetic aspects are separable from their
utilitarian aspects (see section 101's definition of "pictorial,
graphic, and sculptural works"). Since the boards' layouts are
probably dictated solely by function, and not by aesthetics, copyright
protection is likely to be weak or nonexistent. Unlike architecture
(before the 1990 Act), circuit boards are not designed for aesthetic
viewing.
In a case of egregious copying involving the plans, a court might be
tempted to award damages, but I doubt it. Injunctive relief is
unlikely in the extreme. This is essentially the reason why a new
statute was required in 1984 to protect semiconductor chips. The
best way to protect circuit boards is through trade secrecy (if you
can "pot" them with expoxy that cannot be removed without destroying
the boards) or patent. Otherwise, you must cast them in silicon and
seek protection under the Chip Act.
Dr. Dratler
William S. Richardson School of Law
University of Hawaii
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