what is case study in computer science

Global Dimensions of Intellectual Property Rights in Science and Technology (1993)

Chapter: 12 a case study on computer programs, 12 a case study on computer programs.

PAMELA SAMUELSON

HISTORICAL OVERVIEW

Phase 1: the 1950s and early 1960s.

When computer programs were first being developed, proprietary rights issues were not of much concern. Software was often developed in academic or other research settings. Much progress in the programming field occurred as a result of informal exchanges of software among academics and other researchers. In the course of such exchanges, a program developed by one person might be extended or improved by a number of colleagues who would send back (or on to others) their revised versions of the software. Computer manufacturers in this period often provided software to customers of their machines to make their major product (i.e., computers) more commercially attractive (which caused the software to be characterized as "bundled" with the hardware).

To the extent that computer programs were distributed in this period by firms for whom proprietary rights in software were important, programs tended to be developed and distributed through restrictive trade secret licensing agreements. In general, these were individually negotiated with customers. The licensing tradition of the early days of the software industry has framed some of the industry expectations about proprietary rights issues, with implications for issues still being litigated today.

In the mid-1960s, as programs began to become more diverse and complex, as more firms began to invest in the development of programs, and as

some began to envision a wider market for software products, a public dialogue began to develop about what kinds of proprietary rights were or should be available for computer programs. The industry had trade secrecy and licensing protection, but some thought more legal protection might be needed.

Phase 2: Mid-1960s and 1970s

Copyright law was one existing intellectual property system into which some in the mid-1960s thought computer programs might potentially fit. Copyright had a number of potential advantages for software: it could provide a relatively long term of protection against unauthorized copying based on a minimal showing of creativity and a simple, inexpensive registration process. 1 Copyright would protect the work's ''expression," but not the "ideas" it contained. Others would be free to use the same ideas in other software, or to develop independently the same or a similar work. All that would be forbidden was the copying of expression from the first author's work.

In 1964, the U.S. Copyright Office considered whether to begin accepting registration of computer programs as copyrightable writings. It decided to do so, but only under its "rule of doubt" and then only on condition that a full text of the program be deposited with the office, which would be available for public review. 2

The Copyright Office's doubt about the copyrightability of programs

arose from a 1908 Supreme Court decision that had held that a piano roll was not an infringing "copy" of copyrighted music, but rather part of a mechanical device. 3 Mechanical devices (and processes) have traditionally been excluded from the copyright domain. 4 Although the office was aware that in machine-readable form, computer programs had a mechanical character, they also had a textual character, which was why the Copyright Office decided to accept them for registration.

The requirement that the full text of the source code of a program be deposited in order for a copyright in the program to be registered was consistent with a long-standing practice of the Copyright Office, 5 as well as with what has long been perceived to be the constitutional purpose of copyright, namely, promoting the creation and dissemination of knowledge. 6

Relatively few programs, however, were registered with the Copyright Office under this policy during the 1960s and 1970s. 7 Several factors may have contributed to this. Some firms may have been deterred by the requirement that the full text of the source code be deposited with the office and made available for public inspection, because this would have dispelled its trade secret status. Some may have thought a registration certificate issued under the rule of doubt might not be worth much. However, the main reason for the low number of copyright registrations was probably that a mass market in software still lay in the future. Copyright is useful mainly to protect mass-marketed products, and trade secrecy is quite adequate for programs with a small number of distributed copies.

Shortly after the Copyright Office issued its policy on the registrability of computer programs, the U.S. Patent Office issued a policy statement concerning its views on the patentability of computer programs. It rejected the idea that computer programs, or the intellectual processes that might be embodied in them, were patentable subject matter. 8 Only if a program was

claimed as part of a traditionally patentable industrial process (i.e., those involving the transformation of matter from one physical state to another) did the Patent Office intend to issue patents for program-related innovations. 9

Patents are typically available for inventive advances in machine designs or other technological products or processes on completion of a rigorous examination procedure conducted by a government agency, based on a detailed specification of what the claimed invention is, how it differs from the prior art, and how the invention can be made. Although patent rights are considerably shorter in duration than copyrights, patent rights are considered stronger because no one may make, use, or sell the claimed invention without the patent owner's permission during the life of the patent. (Patents give rights not just against someone who copies the protected innovation, but even against those who develop it independently.) Also, much of what copyright law would consider to be unprotectable functional content ("ideas") if described in a book can be protected by patent law.

The Patent Office's policy denying the patentability of program innovations was consistent with the recommendations of a presidential commission convened to make suggestions about how the office could more effectively cope with an "age of exploding technology." The commission also recommended that patent protection not be available for computer program innovations. 10

Although there were some appellate decisions in the late 1960s and

early 1970s overturning Patent Office rejections of computer program-related applications, few software developers looked to the patent system for protection after two U.S. Supreme Court decisions in the 1970s ruled that patent protection was not available for algorithms. 11 These decisions were generally regarded as calling into question the patentability of all software innovations, although some continued to pursue patents for their software innovations notwithstanding these decisions. 12

As the 1970s drew to a close, despite the seeming availability of copyright protection for computer programs, the software industry was still relying principally on trade secrecy and licensing agreements. Patents seemed largely, if not totally, unavailable for program innovations. Occasional suggestions were made that a new form of legal protection for computer programs should be devised, but the practice of the day was trade secrecy and licensing, and the discourse about additional protection was focused overwhelmingly on copyright.

During the 1960s and 1970s the computer science research community grew substantially in size. Although more software was being distributed under restrictive licensing agreements, much software, as well as innovative ideas about how to develop software, continued to be exchanged among researchers in this field. The results of much of this research were published and discussed openly at research conferences. Toward the end of this period, a number of important research ideas began to make their way into commercial projects, but this was not seen as an impediment to research by computer scientists because the commercial ventures tended to arise after the research had been published. Researchers during this period did not, for the most part, seek proprietary rights in their software or software ideas, although other rewards (such as tenure or recognition in the field) were available to those whose innovative research was published.

Phase 3: The 1980s

Four significant developments in the 1980s changed the landscape of the software industry and the intellectual property rights concerns of those who developed software. Two were developments in the computing field; two were legal developments.

The first significant computing development was the introduction to the market of the personal computer (PC), a machine made possible by improvements in the design of semiconductor chips, both as memory storage

devices and as processing units. A second was the visible commercial success of some early PC applications software—most notably, Visicalc, and then Lotus 1-2-3—which significantly contributed to the demand for PCs as well as making other software developers aware that fortunes could be made by selling software. With these developments, the base for a large mass market in software was finally in place.

During this period, computer manufacturers began to realize that it was to their advantage to encourage others to develop application programs that could be executed on their brand of computers. One form of encouragement involved making available to software developers whatever interface information would be necessary for development of application programs that could interact with the operating system software provided with the vendor's computers (information that might otherwise have been maintained as a trade secret). Another form of encouragement was pioneered by Apple Computer, which recognized the potential value to consumers (and ultimately to Apple) of having a relatively consistent "look and feel" to the applications programs developed to run on Apple computers. Apple developed detailed guidelines for applications developers to aid in the construction of this consistent look and feel.

The first important legal development—one which was in place when the first successful mass-marketed software applications were introduced into the market—was passage of amendments to the copyright statute in 1980 to resolve the lingering doubt about whether copyright protection was available for computer programs. 13 These amendments were adopted on the recommendation of the National Commission on New Technological Uses of Copyrighted Works (CONTU), which Congress had established to study a number of "new technology" issues affecting copyrighted works. The CONTU report emphasized the written nature of program texts, which made them seem so much like written texts that had long been protected by copyright law. The CONTU report noted the successful expansion of the boundaries of copyright over the years to take in other new technology products, such as photographs, motion pictures, and sound recordings. It predicted that computer programs could also be accommodated in the copyright regime. 14

Copyright law was perceived by CONTU as the best alternative for protection of computer programs under existing intellectual property regimes. Trade secrecy, CONTU noted, was inherently unsuited for mass-marketed products because the first sale of the product on the open market would dispel the secret. CONTU observed that Supreme Court rulings had cast

doubts on the availability of patent protection for software. CONTU's confidence in copyright protection for computer programs was also partly based on an economic study it had commissioned. This economic study regarded copyright as suitable for protecting software against unauthorized copying after sale of the first copy of it in the marketplace, while fostering the development of independently created programs. The CONTU majority expressed confidence that judges would be able to draw lines between protected expression and unprotected ideas embodied in computer programs, just as they did routinely with other kinds of copyrighted works.

A strong dissenting view was expressed by the novelist John Hersey, one of the members of the CONTU commission, who regarded programs as too mechanical to be protected by copyright law. Hersey warned that the software industry had no intention to cease the use of trade secrecy for software. Dual assertion of trade secrecy and copyright seemed to him incompatible with copyright's historical function of promoting the dissemination of knowledge.

Another development during this period was that the Copyright Office dropped its earlier requirement that the full text of source code be deposited with it. Now only the first and last 25 pages of source code had to be deposited to register a program. The office also decided it had no objection if the copyright owner blacked out some portions of the deposited source code so as not to reveal trade secrets. This new policy was said to be consistent with the new copyright statute that protected both published and unpublished works alike, in contrast to the prior statutes that had protected mainly published works. 15

With the enactment of the software copyright amendments, software developers had a legal remedy in the event that someone began to mass-market exact or near-exact copies of the developers' programs in competition with the owner of the copyright in the program. Unsurprisingly, the first software copyright cases involved exact copying of the whole or substantial portions of program code, and in them, the courts found copyright infringement. Copyright litigation in the mid- and late 1980s began to grapple with questions about what, besides program code, copyright protects about computer programs. Because the "second-generation" litigation affects the current legal framework for the protection of computer programs, the issues raised by these cases will be dealt with in the next section.

As CONTU Commissioner Hersey anticipated, software developers did not give up their claims to the valuable trade secrets embodied in their programs after enactment of the 1980 amendments to the copyright statute.

To protect those secrets, developers began distributing their products in machine-readable form, often relying on "shrink-wrap" licensing agreements to limit consumer rights in the software. 16 Serious questions exist about the enforceability of shrink-wrap licenses, some because of their dubious contractual character 17 and some because of provisions that aim to deprive consumers of rights conferred by the copyright statute. 18 That has not led, however, to their disuse.

One common trade secret-related provision of shrink-wrap licenses, as well as of many negotiated licenses, is a prohibition against decompilation or disassembly of the program code. Such provisions are relied on as the basis of software developer assertions that notwithstanding the mass distribution of a program, the program should be treated as unpublished copyrighted works as to which virtually no fair use defenses can be raised. 19

Those who seek to prevent decompilation of programs tend to assert that since decompilation involves making an unauthorized copy of the program, it constitutes an improper means of obtaining trade secrets in the program. Under this theory, decompilation of program code results in three unlawful acts: copyright infringement (because of the unauthorized copy made during the decompilation process), trade secret misappropriation (because the secret has been obtained by improper means, i.e., by copyright

infringement), and a breach of the licensing agreement (which prohibits decompilation).

Under this theory, copyright law would become the legal instrument by which trade secrecy could be maintained in a mass-marketed product, rather than a law that promotes the dissemination of knowledge. Others regard decompilation as a fair use of a mass-marketed program and, shrink-wrap restrictions to the contrary, as unenforceable. This issue has been litigated in the United States, but has not yet been resolved definitively. 20 The issue remains controversial both within the United States and abroad.

A second important legal development in the early 1980s—although one that took some time to become apparent—was a substantial shift in the U.S. Patent and Trademark Office (PTO) policy concerning the patentability of computer program-related inventions. This change occurred after the 1981 decision by the U.S. Supreme Court in Diamond v. Diehr, which ruled that a rubber curing process, one element of which was a computer program, was a patentable process. On its face, the Diehr decision seemed consistent with the 1966 Patent Office policy and seemed, therefore, not likely to lead to a significant change in patent policy regarding software innovations. 21 By the mid-1980s, however, the PTO had come to construe the Court's ruling broadly and started issuing a wide variety of computer program-related patents. Only "mathematical algorithms in the abstract" were now thought unpatentable. Word of the PTO's new receptivity to software patent applications spread within the patent bar and gradually to software developers.

During the early and mid-1980s, both the computer science field and the software industry grew very significantly. Innovative ideas in computer science and related research fields were widely published and disseminated. Software was still exchanged by researchers, but a new sensitivity to intellectual property rights began to arise, with general recognition that unauthorized copying of software might infringe copyrights, especially if done with a commercial purpose. This was not perceived as presenting a serious obstacle to research, for it was generally understood that a reimplementation of the program (writing one's own code) would be

noninfringing. 22 Also, much of the software (and ideas about software) exchanged by researchers during the early and mid-1980s occurred outside the commercial marketplace. Increasingly, the exchanges took place with the aid of government-subsidized networks of computers.

Software firms often benefited from the plentiful availability of research about software, as well as from the availability of highly trained researchers who could be recruited as employees. Software developers began investing more heavily in research and development work. Some of the results of this research was published and/or exchanged at technical conferences, but much was kept as a trade secret and incorporated in new products.

By the late 1980s, concerns began arising in the computer science and related fields, as well as in the software industry and the legal community, about the degree of intellectual property protection needed to promote a continuation of the high level of innovation in the software industry. 23 Although most software development firms, researchers, and manufacturers of computers designed to be compatible with the leading firms' machines seemed to think that copyright (complemented by trade secrecy) was adequate to their needs, the changing self-perception of several major computer manufacturers led them to push for more and "stronger" protection. (This concern has been shared by some successful software firms whose most popular programs were being "cloned" by competitors.) Having come to realize that software was where the principal money of the future would be made, these computer firms began reconceiving themselves as software developers. As they did so, their perspective on software protection issues changed as well. If they were going to invest in software development, they wanted "strong'' protection for it. They have, as a consequence, become among the most vocal advocates of strong copyright, as well as of patent protection for computer programs. 24

CURRENT LEGAL APPROACHES IN THE UNITED STATES

Software developers in the United States are currently protecting software products through one or more of the following legal protection mechanisms: copyright, trade secret, and/or patent law. Licensing agreements often supplement these forms of protection. Some software licensing agreements are negotiated with individual customers; others are printed forms found under the plastic shrink-wrap of a mass-marketed package. 25 Few developers rely on only one form of legal protection. Developers seem to differ somewhat on the mix of legal protection mechanisms they employ as well as on the degree of protection they expect from each legal device.

Although the availability of intellectual property protection has unquestionably contributed to the growth and prosperity of the U.S. software industry, some in the industry and in the research community are concerned that innovation and competition in this industry will be impeded rather than enhanced if existing intellectual property rights are construed very broadly. 26 Others, however, worry that courts may not construe intellectual property rights broadly enough to protect what is most valuable about software, and if too little protection is available, there may be insufficient incentives to invest in software development; hence innovation and competition may be retarded through underprotection. 27 Still others (mainly lawyers) are confident that the software industry will continue to prosper and grow under the existing intellectual property regimes as the courts "fill out" the details of software protection on a case-by-case basis as they have been doing for the past several years. 28

What's Not Controversial

Although the main purpose of the discussion of current approaches is to give an overview of the principal intellectual property issues about which there is controversy in the technical and legal communities, it may be wise to begin with a recognition of a number of intellectual property issues as to which there is today no significant controversy. Describing only the aspects of the legal environment as to which controversies exist would risk creating a misimpression about the satisfaction many software developers and lawyers have with some aspects of intellectual property rights they now use to protect their and their clients' products.

One uncontroversial aspect of the current legal environment is the use of copyright to protect against exact or near-exact copying of program code. Another is the use of copyright to protect certain aspects of user interfaces, such as videogame graphics, that are easily identifiable as "expressive" in a traditional copyright sense. Also relatively uncontroversial is the use of copyright protection for low-level structural details of programs, such as the instruction-by-instruction sequence of the code. 29

The use of trade secret protection for the source code of programs and other internally held documents concerning program design and the like is similarly uncontroversial. So too is the use of licensing agreements negotiated with individual customers under which trade secret software is made available to licensees when the number of licensees is relatively small and when there is a reasonable prospect of ensuring that licensees will take adequate measures to protect the secrecy of the software. Patent protection for industrial processes that have computer program elements, such as the rubber curing process in the Diehr case, is also uncontroversial.

Substantial controversies exist, however, about the application of copyright law to protect other aspects of software, about patent protection for other kinds of software innovations, about the enforceability of shrink-wrap licensing agreements, and about the manner in which the various forms of legal protection seemingly available to software developers interrelate in the protection of program elements (e.g., the extent to which copyright and trade secret protection can coexist in mass-marketed software).

Controversies Arising From Whelan v. Jaslow

Because quite a number of the most contentious copyright issues arise from the Whelan v. Jaslow decision, this subsection focuses on that case. In the summer of 1986, the Third Circuit Court of Appeals affirmed a trial court decision in favor of Whelan Associates in its software copyright lawsuit against Jaslow Dental Laboratories. 30 Jaslow's program for managing dental lab business functions used some of the same data and file structures as Whelan's program (to which Jaslow had access), and five subroutines of Jaslow's program functioned very similarly to Whelan's. The trial court inferred that there were substantial similarities in the underlying structure of the two programs based largely on a comparison of similarities in the user interfaces of the two programs, even though user interface similarities were not the basis for the infringement claim. Jaslow's principal defense was that Whelan's copyright protected only against exact copying of program code, and since there were no literal similarities between the programs, no copyright infringement had occurred.

In its opinion on this appeal, the Third Circuit stated that copyright protection was available for the "structure, sequence, and organization" (sso) of a program, not just the program code. (The court did not distinguish between high- and low-level structural features of a program.) The court analogized copyright protection for program sso to the copyright protection available for such things as detailed plot sequences in novels. The court also emphasized that the coding of a program was a minor part of the cost of development of a program. The court expressed fear that if copyright protection was not accorded to sso, there would be insufficient incentives to invest in the development of software.

The Third Circuit's Whelan decision also quoted with approval from that part of the trial court opinion stating that similarities in the manner in which programs functioned could serve as a basis for a finding of copyright infringement. Although recognizing that user interface similarities did not necessarily mean that two programs had similar underlying structures (thereby correcting an error the trial judge had made), the appellate court thought that user interface similarities might still be some evidence of underlying structural similarities. In conjunction with other evidence in the case, the Third Circuit decided that infringement had properly been found.

Although a number of controversies have arisen out of the Whelan opinion, the aspect of the opinion that has received the greatest attention is the test the court used for determining copyright infringement in computer

program cases. The " Whelan test" regards the general purpose or function of a program as its unprotectable "idea." All else about the program is, under the Whelan test, protectable "expression'' unless there is only one or a very small number of ways to achieve the function (in which case idea and expression are said to be "merged," and what would otherwise be expression is treated as an idea). The sole defense this test contemplates for one who has copied anything more detailed than the general function of another program is that copying that detail was "necessary" to perform that program function. If there is in the marketplace another program that does the function differently, courts applying the Whelan test have generally been persuaded that the copying was unjustified and that what was taken must have been "expressive."

Although the Whelan test has been used in a number of subsequent cases, including the well-publicized Lotus v. Paperback case, 31 some judges have rejected it as inconsistent with copyright law and tradition, or have found ways to distinguish the Whelan case when employing its test would have resulted in a finding of infringement. 32

Many commentators assert that the Whelan test interprets copyright

protection too expansively. 33 Although the court in Whelan did not seem to realize it, the Whelan test would give much broader copyright protection to computer programs than has traditionally been given to novels and plays, which are among the artistic and fanciful works generally accorded a broader scope of protection than functional kinds of writings (of which programs would seem to be an example). 34 The Whelan test would forbid reuse of many things people in the field tend to regard as ideas. 35 Some commentators have suggested that because innovation in software tends to be of a more incremental character than in some other fields, and especially given the long duration of copyright protection, the Whelan interpretation of the scope of copyright is likely to substantially overprotect software. 36

One lawyer-economist, Professor Peter Menell, has observed that the model of innovation used by the economists who did the study of software for CONTU is now considered to be an outmoded approach. 37 Those econo-

mists focused on a model that considered what incentives would be needed for development of individual programs in isolation. Today, economists would consider what protection would be needed to foster innovation of a more cumulative and incremental kind, such as has largely typified the software field. In addition, the economists on whose work CONTU relied did not anticipate the networking potential of software and consequently did not study what provisions the law should make in response to this phenomenon. Menell has suggested that with the aid of their now more refined model of innovation, economists today might make somewhat different recommendations on software protection than they did in the late 1970s for CONTU. 38

As a matter of copyright law, the principal problem with the Whelan test is its incompatibility with the copyright statute, the case law properly interpreting it, and traditional principles of copyright law. The copyright statute provides that not only ideas, but also processes, procedures, systems, and methods of operation, are unprotectable elements of copyrighted works. 39 This provision codifies some long-standing principles derived from U.S. copyright case law, such as the Supreme Court's century-old Baker v. Selden decision that ruled that a second author did not infringe a first author's copyright when he put into his own book substantially similar ledger sheets to those in the first author's book. The reason the Court gave for its ruling was that Selden's copyright did not give him exclusive rights to the bookkeeping system, but only to his explanation or description of it. 40 The ordering and arrangement of columns and headings on the ledger sheets were part of the system; to get exclusive rights in this, the Court said that Selden would have to get a patent.

The statutory exclusion from copyright protection for methods, processes, and the like was added to the copyright statute in part to ensure that the scope of copyright in computer programs would not be construed too broadly. Yet, in cases in which the Whelan test has been employed, the courts have tended to find the presence of protectable "expression" when they perceive there to be more than a couple of ways to perform some function, seeming not to realize that there may be more than one "method" or "system" or "process" for doing something, none of which is properly protected by copyright law. The Whelan test does not attempt to exclude

methods or processes from the scope of copyright protection, and its recognition of functionality as a limitation on the scope of copyright is triggered only when there are no alternative ways to perform program functions.

Whelan has been invoked by plaintiffs not only in cases involving similarities in the internal structural design features of programs, but also in many other kinds of cases. sso can be construed to include internal interface specifications of a program, the layout of elements in a user interface, and the sequence of screen displays when program functions are executed, among other things. Even the manner in which a program functions can be said to be protectable by copyright law under Whelan . The case law on these issues and other software issues is in conflict, and resolution of these controversies cannot be expected very soon.

Traditionalist Versus Strong Protectionist View of What Copyright Law Does and Does Not Protect in Computer Programs

Traditional principles of copyright law, when applied to computer programs, would tend to yield only a "thin" scope of protection for them. Unquestionably, copyright protection would exist for the code of the program and the kinds of expressive displays generated when program instructions are executed, such as explanatory text and fanciful graphics, which are readily perceptible as traditional subject matters of copyright law. A traditionalist would regard copyright protection as not extending to functional elements of a program, whether at a high or low level of abstraction, or to the functional behavior that programs exhibit. Nor would copyright protection be available for the applied know-how embodied in programs, including program logic. 41 Copyright protection would also not be available for algorithms or other structural abstractions in software that are constituent elements of a process, method, or system embodied in a program.

Efficient ways of implementing a function would also not be protectable by copyright law under the traditionalist view, nor would aspects of software design that make the software easier to use (because this bears on program functionality). The traditionalist would also not regard making a limited number of copies of a program to study it and extract interface information or other ideas from the program as infringing conduct, because computer programs are a kind of work for which it is necessary to make a copy to "read" the text of the work. 42 Developing a program that incorporates interface information derived from decompilation would also, in the traditionalist view, be noninfringing conduct.

If decompilation and the use of interface information derived from the study of decompiled code were to be infringing acts, the traditionalist would regard copyright as having been turned inside out, for instead of promoting the dissemination of knowledge as has been its traditional purpose, copyright law would become the principal means by which trade secrets would be maintained in widely distributed copyrighted works. Instead of protecting only expressive elements of programs, copyright would become like a patent: a means by which to get exclusive rights to the configuration of a machine—without meeting stringent patent standards or following the strict procedures required to obtain patent protection. This too would seem to turn copyright inside out.

Because interfaces, algorithms, logic, and functionalities of programs are aspects of programs that make them valuable, it is understandable that some of those who seek to maximize their financial returns on software investments have argued that "strong" copyright protection is or should be available for all valuable features of programs, either as part of program sso or under the Whelan "there's-another-way-to-do-it" test. 43 Congress seems to have intended for copyright law to be interpreted as to programs on a case-by-case basis, and if courts determine that valuable features should be considered "expressive," the strong protectionists would applaud this common law evolution. If traditional concepts of copyright law and its purposes do not provide an adequate degree of protection for software innovation, they see it as natural that copyright should grow to provide it. Strong protectionists tend to regard traditionalists as sentimental Luddites who do not appreciate that what matters is for software to get the degree of protection it needs from the law so that the industry will thrive.

Although some cases, most notably the Whelan and Lotus decisions, have adopted the strong protectionist view, traditionalists will tend to regard these decisions as flawed and unlikely to be affirmed in the long run because they are inconsistent with the expressed legislative intent to have traditional principles of copyright law applied to software. Some copyright traditionalists favor patent protection for software innovations on the ground that the valuable functional elements of programs do need protection to create proper incentives for investing in software innovations, but that this protection should come from patent law, not from copyright law.

Controversy Over "Software Patents"

Although some perceive patents as a way to protect valuable aspects of programs that cannot be protected by copyright law, those who argue for patents for software innovations do not rely on the "gap-filling" concern alone. As a legal matter, proponents of software patents point out that the patent statute makes new, nonobvious, and useful "processes" patentable. Programs themselves are processes; they also embody processes. 44 Computer hardware is clearly patentable, and it is a commonplace in the computing field that any tasks for which a program can be written can also be implemented in hardware. This too would seem to support the patentability of software.

Proponents also argue that protecting program innovations by patent law is consistent with the constitutional purpose of patent law, which is to promote progress in the "useful arts." Computer program innovations are technological in nature, which is said to make them part of the useful arts to which the Constitution refers. Proponents insist that patent law has the same potential for promoting progress in the software field as it has had for promoting progress in other technological fields. They regard attacks on patents for software innovations as reflective of the passing of the frontier in the software industry, a painful transition period for some, but one necessary if the industry is to have sufficient incentives to invest in software development.

Some within the software industry and the technical community, however, oppose patents for software innovations. 45 Opponents tend to make two kinds of arguments against software patents, often without distinguishing between them. One set of arguments questions the ability of the PTO to deal well with software patent applications. Another set raises more fundamental questions about software patents. Even assuming that the PTO could begin to do a good job at issuing software patents, some question whether

innovation in the software field will be properly promoted if patents become widely available for software innovations. The main points of both sets of arguments are developed below.

Much of the discussion in the technical community has focused on "bad" software patents that have been issued by the PTO. Some patents are considered bad because the innovation was, unbeknownst to the PTO, already in the state of the art prior to the date of invention claimed in the patent. Others are considered bad because critics assert that the innovations they embody are too obvious to be deserving of patent protection. Still others are said to be bad because they are tantamount to a claim for performing a particular function by computer or to a claim for a law of nature, neither of which is regarded as patentable subject matter. Complaints abound that the PTO, after decades of not keeping up with developments in this field, is so far out of touch with what has been and is happening in the field as to be unable to make appropriate judgments on novelty and nonobviousness issues. Other complaints relate to the office's inadequate classification scheme for software and lack of examiners with suitable education and experience in computer science and related fields to make appropriate judgments on software patent issues. 46

A somewhat different point is made by those who assert that the software industry has grown to its current size and prosperity without the aid of patents, which causes them to question the need for patents to promote innovation in this industry. 47 The highly exclusionary nature of patents (any use of the innovation without the patentee's permission is infringing) contrasts sharply with the tradition of independent reinvention in this field. The high expense associated with obtaining and enforcing patents raises concerns about the increased barriers to entry that may be created by the patenting of software innovations. Since much of the innovation in this industry has come from small firms, policies that inhibit entry by small firms may not promote innovation in this field in the long run. Similar questions arise as to whether patents will promote a proper degree of innovation in an incremental industry such as the software industry. It would be possible to undertake an economic study of conditions that have promoted and are promoting progress in the software industry to serve as a basis for a policy decision on software patents, but this has not been done to date.

Some computer scientists and mathematicians are also concerned about patents that have been issuing for algorithms, 48 which they regard as dis-

coveries of fundamental truths that should not be owned by anyone. Because any use of a patented algorithm within the scope of the claims—whether by an academic or a commercial programmer, whether one knew of the patent or not—may be an infringement, some worry that research on algorithms will be slowed down by the issuance of algorithm patents. One mathematical society has recently issued a report opposing the patenting of algorithms. 49 Others, including Richard Stallman, have formed a League for Programming Freedom.

There is substantial case law to support the software patent opponent position, notwithstanding the PTO change in policy. 50 Three U.S. Supreme Court decisions have stated that computer program algorithms are unpatentable subject matter. Other case law affirms the unpatentability of processes that involve the manipulation of information rather than the transformation of matter from one physical state to another.

One other concern worth mentioning if both patents and copyrights are used to protect computer program innovations is whether a meaningful boundary line can be drawn between the patent and copyright domains as regards software. 51 A joint report of the U.S. PTO and the Copyright Office optimistically concludes that no significant problems will arise from the coexistence of these two forms of protection for software because copyright law will only protect program "expression" whereas patent law will only protect program "processes." 52

Notwithstanding this report, I continue to be concerned with the patent/ copyright interface because of the expansive interpretations some cases, particularly Whelan, have given to the scope of copyright protection for programs. This prefigures a significant overlap of copyright and patent law as to software innovations. This overlap would undermine important economic and public policy goals of the patent system, which generally leaves in the public domain those innovations not novel or nonobvious enough to be patented. Mere "originality" in a copyright sense is not enough to make an innovation in the useful arts protectable under U.S. law. 53

A concrete example may help illustrate this concern. Some patent lawyers report getting patents on data structures for computer programs.

The Whelan decision relied in part on similarities in data structures to prove copyright infringement. Are data structures "expressive" or "useful"? When one wants to protect a data structure of a program by copyright, does one merely call it part of the sso of the program, whereas if one wants to patent it, one calls it a method (i.e., a process) of organizing data for accomplishing certain results? What if anything does copyright's exclusion from protection of processes embodied in copyrighted works mean as applied to data structures? No clear answer to these questions emerges from the case law.

Nature of Computer Programs and Exploration of a Modified Copyright Approach

It may be that the deeper problem is that computer programs, by their very nature, challenge or contradict some fundamental assumptions of the existing intellectual property regimes. Underlying the existing regimes of copyright and patent law are some deeply embedded assumptions about the very different nature of two kinds of innovations that are thought to need very different kinds of protection owing to some important differences in the economic consequences of their protection. 54

In the United States, these assumptions derive largely from the U.S. Constitution, which specifically empowers Congress "to promote the progress of science [i.e., knowledge] and useful arts [i.e., technology], by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." 55 This clause has historically been parsed as two separate clauses packaged together for convenience: one giving Congress power to enact laws aimed at promoting the progress of knowledge by giving authors exclusive rights in their writings, and the other giving Congress power to promote technological progress by giving inventors exclusive rights in their technological discoveries. Copyright law implements the first power, and patent law the second.

Owing partly to the distinctions between writings and machines, which the constitutional clause itself set up, copyright law has excluded machines

and other technological subject matters from its domain. 56 Even when described in a copyrighted book, an innovation in the useful arts was considered beyond the scope of copyright protection. The Supreme Court's Baker v. Selden decision reflects this view of the constitutional allocation. Similarly, patent law has historically excluded printed matter (i.e., the contents of writings) from its domain, notwithstanding the fact that printed matter may be a product of a manufacturing process. 57 Also excluded from the patent domain have been methods of organizing, displaying, and manipulating information (i.e., processes that might be embodied in writings, for example mathematical formulas), notwithstanding the fact that "processes" are named in the statute as patentable subject matter. They were not, however, perceived to be "in the useful arts" within the meaning of the constitutional clause.

The constitutional clause has been understood as both a grant of power and a limitation on power. Congress cannot, for example, grant perpetual patent rights to inventors, for that would violate the "limited times" provision of the Constitution. Courts have also sometimes ruled that Congress cannot, under this clause, grant exclusive rights to anyone but authors and inventors. In the late nineteenth century, the Supreme Court struck down the first federal trademark statute on the ground that Congress did not have power to grant rights under this clause to owners of trademarks who were neither "authors" nor "inventors." 58 A similar view was expressed in last year's Feist Publications v. Rural Telephone Services decision by the Supreme Court, which repeatedly stated that Congress could not constitutionally protect the white pages of telephone books through copyright law because to be an "author" within the meaning of the Constitution required some creativity in expression that white pages lacked. 59

Still other Supreme Court decisions have suggested that Congress could not constitutionally grant exclusive rights to innovators in the useful arts who were not true "inventors." 60 Certain economic assumptions are connected with this view, including the assumption that more modest innovations in the useful arts (the work of a mere mechanic) will be forthcoming without the grant of the exclusive rights of a patent, but that the incentives of patent rights are necessary to make people invest in making significant technological advances and share the results of their work with the public instead of keeping them secret.

One reason the United States does not have a copyright-like form of protection for industrial designs, as do many other countries, is because of lingering questions about the constitutionality of such legislation. In addition, concerns exist that the economic consequences of protecting uninventive technological advances will be harmful. So powerful are the prevailing patent and copyright paradigms that when Congress was in the process of considering the adoption of a copyright-like form of intellectual property protection for semiconductor chip designs, there was considerable debate about whether Congress had constitutional power to enact such a law. It finally decided it did have such power under the commerce clause, but even then was not certain.

As this discussion reveals, the U.S. intellectual property law has long assumed that something is either a writing (in which case it is protectable, if at all, by copyright law) or a machine (in which case it is protectable, if at all, by patent law), but cannot be both at the same time. However, as Professor Randall Davis has so concisely said, software is "a machine whose medium of construction happens to be text." 61 Davis regards the act of creating computer programs as inevitably one of both authorship and invention. There may be little or nothing about a computer program that is not, at base, functional in nature, and nothing about it that does not have roots in the text. Because of this, it will inevitably be difficult to draw meaningful boundaries for patents and copyrights as applied to computer programs.

Another aspect of computer programs that challenges the assumptions of existing intellectual property systems is reflected in another of Professor Davis's observations, namely, that "programs are not only texts; they also behave." 62 Much of the dynamic behavior of computer programs is highly functional in nature. If one followed traditional copyright principles, this functional behavior—no matter how valuable it might be—would be considered outside the scope of copyright law. 63 Although the functionality of program behavior might seem at first glance to mean that patent protection would be the obvious form of legal protection for it, as a practical matter, drafting patent claims that would adequately capture program behavior as an invention is infeasible. There are at least two reasons for this: it is partly because programs are able to exhibit such a large number and variety of states that claims could not reasonably cover them, and partly because of

the ''gestalt"-like character of program behavior, something that makes a more copyright-like approach desirable.

Some legal scholars have argued that because of their hybrid character as both writings and machines, computer programs need a somewhat different legal treatment than either traditional patent or copyright law would provide. 64 They have warned of distortions in the existing legal systems likely to occur if one attempts to integrate such a hybrid into the traditional systems as if it were no different from the traditional subject matters of these systems. 65 Even if the copyright and patent laws could be made to perform their tasks with greater predictability than is currently the case, these authors warn that such regimes may not provide the kind of protection that software innovators really need, for most computer programs will be legally obvious for patent purposes, and programs are, over time, likely to be assimilated within copyright in a manner similar to that given to "factual" and "functional" literary works that have only "thin" protection against piracy. 66

Professor Reichman has reported on the recurrent oscillations between states of under- and overprotection when legal systems have tried to cope with another kind of legal hybrid, namely, industrial designs (sometimes referred to as "industrial art"). Much the same pattern seems to be emerging in regard to computer programs, which are, in effect, "industrial literature." 67

The larger problems these hybrids present is that of protecting valuable forms of applied know-how embodied in incremental innovation that cannot successfully be maintained as trade secrets:

[M]uch of today's most advanced technology enjoys a less favorable competitive position than that of conventional machinery because the unpatentable, intangible know-how responsible for its commercial value becomes embodied in products that are distributed on the open market. A product of the new technologies, such as a computer program, an integrated circuit

design, or even a biogenetically altered organism may thus bear its know-how on its face, a condition that renders it as vulnerable to rapid appropriation by second-comers as any published literary or artistic work.

From this perspective, a major problem with the kinds of innovative know-how underlying important new technologies is that they do not lend themselves to secrecy even when they represent the fruit of enormous investment in research and development. Because third parties can rapidly duplicate the embodied information and offer virtually the same products at lower prices than those of the originators, there is no secure interval of lead time in which to recuperate the originators' initial investment or their losses from unsuccessful essays, not to mention the goal of turning a profit. 68

From a behavioral standpoint, investors in applied scientific know-how find the copyright paradigm attractive because of its inherent disposition to supply artificial lead time to all comers without regard to innovative merit and without requiring originators to preselect the products that are most worthy of protection. 69

Full copyright protection, however, with its broad notion of equivalents geared to derivative expressions of an author's personality is likely to disrupt the workings of the competitive market for industrial products. For this and other reasons, Professor Reichman argues that a modified copyright approach to the protection of computer programs (and other legal hybrids) would be a preferable framework for protecting the applied know-how they embody than either the patent or the copyright regime would presently provide. Similar arguments can be made for a modified form of copyright protection for the dynamic behavior of programs. A modified copyright approach might involve a short duration of protection for original valuable functional components of programs. It could be framed to supplement full copyright protection for program code and traditionally expressive elements of text and graphics displayed when programs execute, features of software that do not present the same dangers of competitive disruption from full copyright protection.

The United States is, in large measure, already undergoing the development of a sui generis law for protection of computer software through case-by-case decisions in copyright lawsuits. Devising a modified copyright approach to protecting certain valuable components that are not suitably protected under the current copyright regime would have the advantage of allowing a conception of the software protection problem as a whole, rather than on a piecemeal basis as occurs in case-by-case litigation in which the

skills of certain attorneys and certain facts may end up causing the law to develop in a skewed manner. 70

There are, however, a number of reasons said to weigh against sui generis legislation for software, among them the international consensus that has developed on the use of copyright law to protect software and the trend toward broader use of patents for software innovations. Some also question whether Congress would be able to devise a more appropriate sui generis system for protecting software than that currently provided by copyright. Some are also opposed to sui generis legislation for new technology products such as semiconductor chips and software on the ground that new intellectual property regimes will make intellectual property law more complicated, confusing, and uncertain.

Although there are many today who ardently oppose sui generis legislation for computer programs, these same people may well become among the most ardent proponents of such legislation if the U.S. Supreme Court, for example, construes the scope of copyright protection for programs to be quite thin, and reiterates its rulings in Benson, Flook, and Diehr that patent protection is unavailable for algorithms and other information processes embodied in software.

INTERNATIONAL PERSPECTIVES

After adopting copyright as a form of legal protection for computer programs, the United States campaigned vigorously around the world to persuade other nations to protect computer programs by copyright law as well. These efforts have been largely successful. Although copyright is now an international norm for the protection of computer software, the fine details of what copyright protection for software means, apart from protection against exact copying of program code, remain somewhat unclear in other nations, just as in the United States.

Other industrialized nations have also tended to follow the U.S. lead concerning the protection of computer program-related inventions by patent

law. 71 Some countries that in the early 1960s were receptive to the patenting of software innovations became less receptive after the Gottschalk v. Benson decision by the U.S. Supreme Court. Some even adopted legislation excluding computer programs from patent protection. More recently, these countries are beginning to issue more program-related patents, once again paralleling U.S. experience, although as in the United States, the standards for patentability of program-related inventions are somewhat unclear. 72 If the United States and Japan continue to issue a large number of computer program-related patents, it seems quite likely other nations will follow suit.

There has been strong pressure in recent years to include relatively specific provisions about intellectual property issues (including those affecting computer programs) as part of the international trade issues within the framework of the General Agreement on Tariffs and Trade (GATT). 73 For a time, the United States was a strong supporter of this approach to resolution of disharmonies among nations on intellectual property issues affecting software. The impetus for this seems to have slackened, however, after U.S. negotiators became aware of a lesser degree of consensus among U.S. software developers on certain key issues than they had thought was the case. Since the adoption of its directive on software copyright law, the European Community (EC) has begun pressing for international adoption of its position on a number of important software issues, including its copyright rule on decompilation of program code.

There is a clear need, given the international nature of the market for software, for a substantial international consensus on software protection issues. However, because there are so many hotly contested issues concerning the extent of copyright and the availability of patent protection for computer programs yet to be resolved, it may be premature to include very specific rules on these subjects in the GATT framework.

Prior to the adoption of the 1991 European Directive on the Protection of Computer Programs, there was general acceptance in Europe of copyright as a form of legal protection for computer programs. A number of nations had interpreted existing copyright statutes as covering programs. Others took legislative action to extend copyright protection to software. There was, however, some divergence in approach among the member nations of the EC in the interpretation of copyright law to computer software. 74

France, for example, although protecting programs under its copyright law, put software in the same category as industrial art, a category of work that is generally protected in Europe for 25 years instead of the life plus 50-year term that is the norm for literary and other artistic works. German courts concluded that to satisfy the "originality" standard of its copyright law, the author of a program needed to demonstrate that the program was the result of more than an average programmer's skill, a seemingly patentlike standard. In 'addition, Switzerland (a non-EC member but European nonetheless) nearly adopted an approach that treated both semiconductor chip designs and computer programs under a new copyright-like law.

Because of these differences and because it was apparent that computer programs would become an increasingly important item of commerce in the European Community, the EC undertook in the late 1980s to develop a policy concerning intellectual property protection for computer programs to which member nations should harmonize their laws. There was some support within the EC for creating a new law for the protection of software, but the directorate favoring a copyright approach won this internal struggle over what form of protection was appropriate for software.

In December 1988 the EC issued a draft directive on copyright protection for computer programs. This directive was intended to spell out in considerable detail in what respects member states should have uniform rules on copyright protection for programs. (The European civil law tradition generally prefers specificity in statutory formulations, in contrast with the U.S. common law tradition, which often prefers case-by-case adjudication of disputes as a way to fill in the details of a legal protection scheme.)

The draft directive on computer programs was the subject of intense debate within the European Community, as well as the object of some intense lobbying by major U.S. firms who were concerned about a number of issues, but particularly about what rule would be adopted concerning decompilation of program code and protection of the internal interfaces of

programs. Some U.S. firms, among them IBM Corp., strongly opposed any provision that would allow decompilation of program code and sought to have interfaces protected; other U.S. firms, such as Sun Microsystems, sought a rule that would permit decompilation and would deny protection to internal interfaces. 75

The final EC directive published in 1991 endorses the view that computer programs should be protected under member states' copyright laws as literary works and given at least 50 years of protection against unauthorized copying. 76 It permits decompilation of program code only if and to the extent necessary to obtain information to create an interoperable program. The inclusion in another program of information necessary to achieve interoperability seems, under the final directive, to be lawful.

The final EC directive states that "ideas" and "principles" embodied in programs are not protectable by copyright, but does not provide examples of what these terms might mean. The directive contains no exclusion from protection of such things as processes, procedures, methods of operation, and systems, as the U.S. statute provides. Nor does it clearly exclude protection of algorithms, interfaces, and program logic, as an earlier draft would have done. Rather, the final directive indicates that to the extent algorithms, logic, and interfaces are ideas, they are unprotectable by copyright law. In this regard, the directive seems, quite uncharacteristically for its civil law tradition, to leave much detail about how copyright law will be applied to programs to be resolved by litigation.

Having just finished the process of debating the EC directive about copyright protection of computer programs, intellectual property specialists in the EC have no interest in debating the merits of any sui generis approach to software protection, even though the only issue the EC directive really resolved may have been that of interoperability. Member states will likely have to address another controversial issue—whether or to what extent user interests in standardization of user interfaces should limit the scope of copyright

protection for programs—as they act on yet another EC directive, one that aims to standardize user interfaces of computer programs. Some U.S. firms may perceive this latter directive as an effort to appropriate valuable U.S. product features.

Japan was the first major industrialized nation to consider adoption of a sui generis approach to the protection of computer programs. 77 Its Ministry of International Trade and Industry (MITI) published a proposal that would have given 15 years of protection against unauthorized copying to computer programs that could meet a copyright-like originality standard under a copyright-like registration regime. MITI attempted to justify its proposed different treatment for computer programs as one appropriate to the different character of programs, compared with traditional copyrighted works. 78 The new legal framework was said to respond and be tailored to the special character of programs. American firms, however, viewed the MITI proposal, particularly its compulsory license provisions, as an effort by the Japanese to appropriate the valuable products of the U.S. software industry. Partly as a result of U.S. pressure, the MITI proposal was rejected by the Japanese government, and the alternative copyright proposal made by the ministry with jurisdiction over copyright law was adopted.

Notwithstanding their inclusion in copyright law, computer programs are a special category of protected work under Japanese law. Limiting the scope of copyright protection for programs is a provision indicating that program languages, rules, and algorithms are not protected by copyright law. 79 Japanese case law under this copyright statute has proceeded along lines similar to U.S. case law, with regard to exact and near-exact copying of program code and graphical aspects of videogame programs, 80 but there have been some Japanese court decisions interpreting the exclusion from protection provisions in a manner seemingly at odds with some U.S. Decisions.

The Tokyo High Court, for example, has opined that the processing flow of a program (an aspect of a program said to be protectable by U.S. law in the Whelan case) is an algorithm within the meaning of the copyright limitation provision. 81 Another seems to bear out Professor Karjala's prediction that Japanese courts would interpret the programming language limitation to permit firms to make compatible software. 82 There is one Japanese decision that can be read to prohibit reverse engineering of program code, but because this case involved not only disassembly of program code but also distribution of a clearly infringing program, the legality of intermediate copying to discern such things as interface information is unclear in Japan. 83

Other Nations

The United States has been pressing a number of nations to give "proper respect" to U.S. intellectual property products, including computer programs. In some cases, as in its dealings with the People's Republic of China, the United States has been pressing for new legislation to protect software under copyright law. In some cases, as in its dealings with Thailand, the United States has been pressing for more vigorous enforcement of intellectual property laws as they affect U.S. intellectual property products. In other cases, as in its dealings with Brazil, the United States pressed for repeal of sui generis legislation that disadvantaged U.S. software producers, compared with Brazilian developers. The United States has achieved some success in these efforts. Despite these successes, piracy of U.S.-produced software and other intellectual property products remains a substantial source of concern.

FUTURE CHALLENGES

Many of the challenges posed by use of existing intellectual property laws to protect computer programs have been discussed in previous sections. This may, however, only map the landscape of legal issues of widespread concern today. Below are some suggestions about issues as to which computer programs may present legal difficulties in the future.

Advanced Software Systems

It has thus far been exceedingly difficult for the legal system to resolve even relatively simple disputes about software intellectual property rights, such as those involved in the Lotus v. Paperback Software case. This does not bode well for how the courts are likely to deal with more complex problems presented by more complex software in future cases. The difficulties arise partly from the lack of familiarity of judges with the technical nature of computers and software, and partly from the lack of close analogies within the body of copyright precedents from which resolutions of software issues might be drawn. The more complex the software, the greater is the likelihood that specially trained judges will be needed to resolve intellectual property disputes about the software. Some advanced software systems are also likely to be sufficiently different from traditional kinds of copyrighted works that the analogical distance between the precedents and a software innovation may make it difficult to predict how copyright law should be applied to it. What copyright protection should be available, for example, to a user interface that responds to verbal commands, gestures, or movements of eyeballs?

Digital Media

The digital medium itself may require adaptation of the models underlying existing intellectual property systems. 84 Copyright law is built largely on the assumption that authors and publishers can control the manufacture and distribution of copies of protected works emanating from a central source. The ease with which digital works can be copied, redistributed, and used by multiple users, as well as the compactness and relative invisibility of works in digital form, have already created substantial incentives for developers of digital media products to focus their commercialization efforts on controlling the uses of digital works, rather than on the distribution of copies, as has more commonly been the rule in copyright industries.

Rules designed for controlling the production and distribution of copies may be difficult to adapt to a system in which uses need to be controlled. Some digital library and hypertext publishing systems seem to be designed to bypass copyright law (and its public policy safeguards, such as the fair use rule) and establish norms of use through restrictive access licensing

agreements. 85 Whether the law will eventually be used to regulate conditions imposed on access to these systems, as it has regulated access to such communication media as broadcasting, remains to be seen. However, the increasing convergence of intellectual property policy, broadcast and telecommunications policy, and other aspects of information policy seems inevitable.

There are already millions of people connected to networks of computers, who are thereby enabled to communicate with one another with relative ease, speed, and reliability. Plans are afoot to add millions more and to allow a wide variety of information services to those connected to the networks, some of which are commercial and some of which are noncommercial in nature. Because networks of this type and scope are a new phenomenon, it would seem quite likely that some new intellectual property issues will arise as the use of computer networks expands. The more commercial the uses of the networks, the more likely intellectual property disputes are to occur.

More of the content distributed over computer networks is copyrighted than its distributors seem to realize, but even as to content that has been recognized as copyrighted, there is a widespread belief among those who communicate over the net that at least noncommercial distributions of content—no matter the number of recipients—are "fair uses" of the content. Some lawyers would agree with this; others would not. Those responsible for the maintenance of the network may need to be concerned about potential liability until this issue is resolved.

A different set of problems may arise when commercial uses are made of content distributed over the net. Here the most likely disputes are those concerning how broad a scope of derivative work rights copyright owners should have. Some owners of copyrights can be expected to resist allowing anyone but themselves (or those licensed by them) to derive any financial benefit from creating a product or service that is built upon the value of their underlying work. Yet value-added services may be highly desirable to consumers, and the ability of outsiders to offer these products and services may spur beneficial competition. At the moment, the case law generally regards a copyright owner's derivative work right as infringed only if a recognizable block of expression is incorporated into another work. 86 How-

ever, the ability of software developers to provide value-added products and services that derive value from the underlying work without copying expression from it may lead some copyright owners to seek to extend the scope of derivative work rights.

Patents and Information Infrastructure of the Future

If patents are issued for all manner of software innovations, they are likely to play an important role in the development of the information infrastructure of the future. Patents have already been issued for hypertext navigation systems, for such things as latent semantic indexing algorithms, and for other software innovations that might be used in the construction of a new information infrastructure. Although it is easy to develop a list of the possible pros and cons of patent protection in this domain, as in the more general debate about software patents, it is worth noting that patents have not played a significant role in the information infrastructure of the past or of the present. How patents would affect the development of the new information infrastructure has not been given the study this subject may deserve.

Conflicts Between Information Haves and Have-Nots on an International Scale

When the United States was a developing nation and a net importer of intellectual property products, it did not respect copyright interests of any authors but its own. Charles Dickens may have made some money from the U.S. tours at which he spoke at public meetings, but he never made a dime from the publication of his works in the United States. Now that the United States is a developed nation and a net exporter of intellectual property products, its perspective on the rights of developing nations to determine for themselves what intellectual property rights to accord to the products of firms of the United States and other developed nations has changed. Given the greater importance nowadays of intellectual property products, both to the United States and to the world economy, it is foreseeable that there will be many occasions on which developed and developing nations will have disagreements on intellectual property issues.

The United States will face a considerable challenge in persuading other nations to subscribe to the same detailed rules that it has for dealing with intellectual property issues affecting computer programs. It may be easier for the United States to deter outright ''piracy" (unauthorized copying of the whole or substantially the whole of copyrighted works) of U.S. intellectual property products than to convince other nations that they must adopt the same rules as the United States has for protecting software.

It is also well for U.S. policymakers and U.S. firms to contemplate the possibility that U.S. firms may not always have the leading position in the world market for software products that they enjoy today. When pushing for very "strong" intellectual property protection for software today in the expectation that this will help to preserve the U.S. advantage in the world market, U.S. policymakers should be careful not to push for adoption of rules today that may substantially disadvantage them in the world market of the future if, for reasons not foreseen today, the United States loses the lead it currently enjoys in the software market.

As technological developments multiply around the globe—even as the patenting of human genes comes under serious discussion—nations, companies, and researchers find themselves in conflict over intellectual property rights (IPRs). Now, an international group of experts presents the first multidisciplinary look at IPRs in an age of explosive growth in science and technology.

This thought-provoking volume offers an update on current international IPR negotiations and includes case studies on software, computer chips, optoelectronics, and biotechnology—areas characterized by high development cost and easy reproducibility. The volume covers these and other issues:

• Modern economic theory as a basis for approaching international IPRs.
• U.S. intellectual property practices versus those in Japan, India, the European Community, and the developing and newly industrializing countries.
• Trends in science and technology and how they affect IPRs.
• Pros and cons of a uniform international IPRs regime versus a system reflecting national differences.

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• Knowledge Base

Methodology

• What Is a Case Study? | Definition, Examples & Methods

What Is a Case Study? | Definition, Examples & Methods

Published on May 8, 2019 by Shona McCombes . Revised on November 20, 2023.

A case study is a detailed study of a specific subject, such as a person, group, place, event, organization, or phenomenon. Case studies are commonly used in social, educational, clinical, and business research.

A case study research design usually involves qualitative methods , but quantitative methods are sometimes also used. Case studies are good for describing , comparing, evaluating and understanding different aspects of a research problem .

Table of contents

When to do a case study, step 1: select a case, step 2: build a theoretical framework, step 3: collect your data, step 4: describe and analyze the case, other interesting articles.

A case study is an appropriate research design when you want to gain concrete, contextual, in-depth knowledge about a specific real-world subject. It allows you to explore the key characteristics, meanings, and implications of the case.

Case studies are often a good choice in a thesis or dissertation . They keep your project focused and manageable when you don’t have the time or resources to do large-scale research.

You might use just one complex case study where you explore a single subject in depth, or conduct multiple case studies to compare and illuminate different aspects of your research problem.

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Once you have developed your problem statement and research questions , you should be ready to choose the specific case that you want to focus on. A good case study should have the potential to:

• Provide new or unexpected insights into the subject
• Challenge or complicate existing assumptions and theories
• Propose practical courses of action to resolve a problem
• Open up new directions for future research

TipIf your research is more practical in nature and aims to simultaneously investigate an issue as you solve it, consider conducting action research instead.

Unlike quantitative or experimental research , a strong case study does not require a random or representative sample. In fact, case studies often deliberately focus on unusual, neglected, or outlying cases which may shed new light on the research problem.

Example of an outlying case studyIn the 1960s the town of Roseto, Pennsylvania was discovered to have extremely low rates of heart disease compared to the US average. It became an important case study for understanding previously neglected causes of heart disease.

However, you can also choose a more common or representative case to exemplify a particular category, experience or phenomenon.

Example of a representative case studyIn the 1920s, two sociologists used Muncie, Indiana as a case study of a typical American city that supposedly exemplified the changing culture of the US at the time.

While case studies focus more on concrete details than general theories, they should usually have some connection with theory in the field. This way the case study is not just an isolated description, but is integrated into existing knowledge about the topic. It might aim to:

• Exemplify a theory by showing how it explains the case under investigation
• Expand on a theory by uncovering new concepts and ideas that need to be incorporated
• Challenge a theory by exploring an outlier case that doesn’t fit with established assumptions

To ensure that your analysis of the case has a solid academic grounding, you should conduct a literature review of sources related to the topic and develop a theoretical framework . This means identifying key concepts and theories to guide your analysis and interpretation.

There are many different research methods you can use to collect data on your subject. Case studies tend to focus on qualitative data using methods such as interviews , observations , and analysis of primary and secondary sources (e.g., newspaper articles, photographs, official records). Sometimes a case study will also collect quantitative data.

Example of a mixed methods case studyFor a case study of a wind farm development in a rural area, you could collect quantitative data on employment rates and business revenue, collect qualitative data on local people’s perceptions and experiences, and analyze local and national media coverage of the development.

The aim is to gain as thorough an understanding as possible of the case and its context.

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In writing up the case study, you need to bring together all the relevant aspects to give as complete a picture as possible of the subject.

How you report your findings depends on the type of research you are doing. Some case studies are structured like a standard scientific paper or thesis , with separate sections or chapters for the methods , results and discussion .

Others are written in a more narrative style, aiming to explore the case from various angles and analyze its meanings and implications (for example, by using textual analysis or discourse analysis ).

In all cases, though, make sure to give contextual details about the case, connect it back to the literature and theory, and discuss how it fits into wider patterns or debates.

If you want to know more about statistics , methodology , or research bias , make sure to check out some of our other articles with explanations and examples.

• Normal distribution
• Degrees of freedom
• Null hypothesis
• Discourse analysis
• Control groups
• Mixed methods research
• Non-probability sampling
• Quantitative research
• Ecological validity

Research bias

• Rosenthal effect
• Implicit bias
• Cognitive bias
• Selection bias
• Negativity bias
• Status quo bias

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Programming case studies

A case study consists of a programming problem, one or more solutions to the problem, and a narrative description of the process used by an expert to produce the solutions.

Rationale for case studies and ideas for using them in a programming course are laid out in the following papers:

• “The Case for Case Studies of Programming Problems” , Marcia C. Linn and Michael J. Clancy, Communications of the ACM , volume 35, number 3, pages 121-132, March 1992.
• “Case Studies in the Classroom” , Michael J. Clancy and Marcia C. Linn, proceedings of the 23rd SIGCSE Technical Symposium on Computer Science Education, Kansas City, Missouri, March, 1992; published as SIGCSE Bulletin , volume 24, number 1, March 1992. (A revised version of this paper is available here .)

Marcia Linn and I put together two collections of case studies in Pascal programming. You can get them used at amazon.com for around $2—such a deal!

• Designing Pascal Solutions: Case Studies with Data Structures , Michael J. Clancy and Marcia C. Linn, W.H. Freeman and Company, 1996.
• Designing Pascal Solutions: A Case Study Approach , Michael J. Clancy and Marcia C. Linn, W.H. Freeman and Company, 1992.

Other textbooks with a strong case study approach include the following:

• (books will be listed here as I find them)

Our Scheme-based introductory programming course for non-CS majors uses several case studies. The self-paced version of the course, CS 3S , uses the case studies listed below.

• "Difference between Dates" case study
• "Roman Numerals" case study
• "Statistics" case study

I'm still developing case studies. In particular, I've tried two new ones in CS 61B , our course on data structures and programming methodology. Comments and feedback are welcome.

• "Medical Diagnosis" case study (unfinished) This involves a program to match up reported symptoms with diseases that the symptoms may suggest. I had planned to solve the problem using "simple" data structures, identify bottlenecks revealed by runs on big data sets, and then replace the data base by something more efficiently accessed and updated. However, it didn't turn out the way I planned.
• "Bowling Scores" case study Loosely based on http://www.xprogramming.com/xpmag/acsBowling.htm and http://www.xprogramming.com/xpmag/acsBowlingProcedural.htm —thanks much to Rodney Hoffman for these links—this describes the test-driven development of a "bowling scorer" object. Unfortunately, I had trouble linking this case study to the rest of the data structures course.

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CiSE Case Studies in Translational Computer Science

Call for department articles.

CiSE ‘s newest department explores how findings in fundamental research in computer, computational, and data science translate to technologies, solutions, or practice for the benefit of science, engineering, and society. Specifically, each department article will highlight impactful translational research examples in which research has successfully moved from the laboratory to the field and into the community. The goal is to improve understanding of underlying approaches, explore challenges and lessons learned, with the overarching aim to formulate translational research processes that are broadly applicable.

Computing and data are increasingly essential to the research process across all areas of science and engineering and are key catalysts for impactful advances and breakthroughs. Consequently, translating fundamental advances in computer, computational, and data science help to ensure that these emerging insights, discoveries, and innovations are realized.  

Translational Research in Computer and Computational Sciences [1][2] refers the bridging of foundational and use-inspired (applied) research with the delivery and deployment of its outcomes to the target community, and supports bi-directional benefit in which delivery and deployment process informs the research. 

Call for Department Contributions: We seek short papers that align with our recommended structure and detail the following aspects of the described research:

• Overview: A description of the research, what problem does it address, who is the target user community, what are the key innovations and attributes, etc.
• Translation Process: What was the process used to move the research from the laboratory to the application? How were outcomes fed back into the research, and over what time period did this occur? How was the translation supported? 
• I mpact: What is the impact of the translated research, both on the CCDS research as well as the target domain(s)? 
• Lessons Learned: What are the lessons learned in terms of both the research and the translation process? What were the challenges faced?
• Conclusion: Based on your experience, do you have suggestions for processes or support structures that would have made the translation more effective?

CiSE Department articles are typically up to 3,000 words (including abstract, references, author biographies, and tables/figures [which count as 250 words each]), and are only reviewed by the department editors.

To pitch or submit a department article, please contact the editors directly by emailing:

• Manish Parashar  
• David Abramson  

Additional information for authors can be found here.

• D. Abramson and M. Parashar, “Translational Research in Computer Science,” Computer , vol. 52, no. 9, pp. 16-23, Sept. 2019, doi: 10.1109/MC.2019.2925650.
• D. Abramson, M. Parashar, and P. Arzberger. “Translation computer science – Overview of the special issue,” J. Computational Sci. , 2020, ISSN 1877-7503, https://www.sciencedirect.com/journal/journal-of-computational-science/special-issue/10P6T48JS7B.

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Fostering ethical thinking in computing

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Traditional computer scientists and engineers are trained to develop solutions for specific needs, but aren’t always trained to consider their broader implications. Each new technology generation, and particularly the rise of artificial intelligence, leads to new kinds of systems, new ways of creating tools, and new forms of data, for which norms, rules, and laws frequently have yet to catch up. The kinds of impact that such innovations have in the world has often not been apparent until many years later.

As part of the efforts in Social and Ethical Responsibilities of Computing (SERC) within the MIT Stephen A. Schwarzman College of Computing, a new case studies series examines social, ethical, and policy challenges of present-day efforts in computing with the aim of facilitating the development of responsible “habits of mind and action” for those who create and deploy computing technologies.

“Advances in computing have undeniably changed much of how we live and work. Understanding and incorporating broader social context is becoming ever more critical,” says Daniel Huttenlocher, dean of the MIT Schwarzman College of Computing. “This case study series is designed to be a basis for discussions in the classroom and beyond, regarding social, ethical, economic, and other implications so that students and researchers can pursue the development of technology across domains in a holistic manner that addresses these important issues.”

A modular system

By design, the case studies are brief and modular to allow users to mix and match the content to fit a variety of pedagogical needs. Series editors David Kaiser and Julie Shah, who are the associate deans for SERC, structured the cases primarily to be appropriate for undergraduate instruction across a range of classes and fields of study.

“Our goal was to provide a seamless way for instructors to integrate cases into an existing course or cluster several cases together to support a broader module within a course. They might also use the cases as a starting point to design new courses that focus squarely on themes of social and ethical responsibilities of computing,” says Kaiser, the Germeshausen Professor of the History of Science and professor of physics.

Shah, an associate professor of aeronautics and astronautics and a roboticist who designs systems in which humans and machines operate side by side, expects that the cases will also be of interest to those outside of academia, including computing professionals, policy specialists, and general readers. In curating the series, Shah says that “we interpret ‘social and ethical responsibilities of computing’ broadly to focus on perspectives of people who are affected by various technologies, as well as focus on perspectives of designers and engineers.”

The cases are not limited to a particular format and can take shape in various forms — from a magazine-like feature article or Socratic dialogues to choose-your-own-adventure stories or role-playing games grounded in empirical research. Each case study is brief, but includes accompanying notes and references to facilitate more in-depth exploration of a given topic. Multimedia projects will also be considered. “The main goal is to present important material — based on original research — in engaging ways to broad audiences of non-specialists,” says Kaiser.

The SERC case studies are specially commissioned and written by scholars who conduct research centrally on the subject of the piece. Kaiser and Shah approached researchers from within MIT as well as from other academic institutions to bring in a mix of diverse voices on a spectrum of topics. Some cases focus on a particular technology or on trends across platforms, while others assess social, historical, philosophical, legal, and cultural facets that are relevant for thinking critically about current efforts in computing and data sciences.

The cases published in the inaugural issue place readers in various settings that challenge them to consider the social and ethical implications of computing technologies, such as how social media services and surveillance tools are built; the racial disparities that can arise from deploying facial recognition technology in unregulated, real-world settings; the biases of risk prediction algorithms in the criminal justice system; and the politicization of data collection.

"Most of us agree that we want computing to work for social good, but which good? Whose good? Whose needs and values and worldviews are prioritized and whose are overlooked?” says Catherine D’Ignazio, an assistant professor of urban science and planning and director of the Data + Feminism Lab at MIT.

D’Ignazio’s case for the series, co-authored with Lauren Klein, an associate professor in the English and Quantitative Theory and Methods departments at Emory University, introduces readers to the idea that while data are useful, they are not always neutral. “These case studies help us understand the unequal histories that shape our technological systems as well as study their disparate outcomes and effects. They are an exciting step towards holistic, sociotechnical thinking and making."

Rigorously reviewed

Kaiser and Shah formed an editorial board composed of 55 faculty members and senior researchers associated with 19 departments, labs, and centers at MIT, and instituted a rigorous peer-review policy model commonly adopted by specialized journals. Members of the editorial board will also help commission topics for new cases and help identify authors for a given topic.

For each submission, the series editors collect four to six peer reviews, with reviewers mostly drawn from the editorial board. For each case, half the reviewers come from fields in computing and data sciences and half from fields in the humanities, arts, and social sciences, to ensure balance of topics and presentation within a given case study and across the series.

“Over the past two decades I’ve become a bit jaded when it comes to the academic review process, and so I was particularly heartened to see such care and thought put into all of the reviews," says Hany Farid, a professor at the University of California at Berkeley with a joint appointment in the Department of Electrical Engineering and Computer Sciences and the School of Information. “The constructive review process made our case study significantly stronger.”

Farid’s case, “The Dangers of Risk Prediction in the Criminal Justice System,” which he penned with Julia Dressel, recently a student of computer science at Dartmouth College, is one of the four commissioned pieces featured in the inaugural issue.

Cases are additionally reviewed by undergraduate volunteers, who help the series editors gauge each submission for balance, accessibility for students in multiple fields of study, and possibilities for adoption in specific courses. The students also work with them to create original homework problems and active learning projects to accompany each case study, to further facilitate adoption of the original materials across a range of existing undergraduate subjects.

“I volunteered to work with this group because I believe that it's incredibly important for those working in computer science to include thinking about ethics not as an afterthought, but integrated into every step and decision that is made, says Annie Snyder, a mathematical economics sophomore and a member of the MIT Schwarzman College of Computing’s Undergraduate Advisory Group. “While this is a massive issue to take on, this project is an amazing opportunity to start building an ethical culture amongst the incredibly talented students at MIT who will hopefully carry it forward into their own projects and workplace.”

New sets of case studies, produced with support from the MIT Press’ Open Publishing Services program, will be published twice a year via the Knowledge Futures Group’s  PubPub platform . The SERC case studies are made available for free on an open-access basis, under Creative Commons licensing terms. Authors retain copyright, enabling them to reuse and republish their work in more specialized scholarly publications.

“It was important to us to approach this project in an inclusive way and lower the barrier for people to be able to access this content. These are complex issues that we need to deal with, and we hope that by making the cases widely available, more people will engage in social and ethical considerations as they’re studying and developing computing technologies,” says Shah.

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The Importance of Computer Science Case Studies for HR: A Comprehensive Guide

As an HR professional, you know that hiring the right candidates is critical to the success of your organization. In today’s digital age, a degree in computer science is highly sought after. However, a degree alone does not guarantee success in the field. This is where computer science case studies come in.

What are Computer Science Case Studies?

Computer science case studies are real-life examples of how computer science is used in different industries. They showcase the challenges faced by organizations and how computer science solutions were used to overcome them. These case studies provide insights into the practical application of computer science concepts and help HR professionals identify the right candidates for their organization.

Why are Computer Science Case Studies Important for HR?

Computer science case studies provide HR professionals with a deeper understanding of a candidate’s skills and abilities. They give insights into the candidate’s problem-solving skills, creativity, and ability to work in a team. In addition, they can help HR professionals identify potential candidates who can bring innovation and new ideas to the organization.

Moreover, computer science case studies help HR professionals understand how technology is being used in different industries. This knowledge can help them identify areas where their organization can improve and stay ahead of the competition.

Where to Find Computer Science Case Studies?

There are various resources available online that provide computer science case studies. Some of the popular websites include:

• MIT Technology Review
• IEEE Spectrum
• Harvard Business Review

In addition, Algobash provides a comprehensive library of computer science case studies that HR professionals can use to identify the right candidates for their organization.

In conclusion, computer science case studies are an essential tool for HR professionals in identifying the right candidates for their organization. They provide insights into the practical application of computer science concepts and help HR professionals identify potential candidates who can bring innovation and new ideas to the organization.

If you’re looking for a comprehensive library of computer science case studies, look no further than Algobash. With Algobash, you can easily find the right candidates for your organization and stay ahead of the competition.

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No prior experience with programming?  No problem!  

Our program welcomes all, and you will not be alone. A large number of our majors come to Case Western Reserve having never written a computer program.

We have the educational expertise to get you up to speed, quickly.

Our Bachelor of Science in Computer Science is an ABET accredited degree program designed for students who want a deep dive into computer science. In this program, you will master the fundamentals of computer science, explore the breadth of computing, and choose one of six areas of specialization for further in-depth study: 

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Students pursuing the Bachelor of Science degree take a majority of their courses in computer science, mathematics, engineering and the natural sciences. Students pursuing the Bachelor of Arts degree have fewer required computer science courses and at the same time, many open electives, allowing students to easily explore other interests in fields outside of computer science or engineering.

Still not sure? At Case Western Reserve University, you can change your program at any time.

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Title: prompting for numerical sequences: a case study on market comment generation.

Abstract: Large language models (LLMs) have been applied to a wide range of data-to-text generation tasks, including tables, graphs, and time-series numerical data-to-text settings. While research on generating prompts for structured data such as tables and graphs is gaining momentum, in-depth investigations into prompting for time-series numerical data are lacking. Therefore, this study explores various input representations, including sequences of tokens and structured formats such as HTML, LaTeX, and Python-style codes. In our experiments, we focus on the task of Market Comment Generation, which involves taking a numerical sequence of stock prices as input and generating a corresponding market comment. Contrary to our expectations, the results show that prompts resembling programming languages yield better outcomes, whereas those similar to natural languages and longer formats, such as HTML and LaTeX, are less effective. Our findings offer insights into creating effective prompts for tasks that generate text from numerical sequences.

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Enhanced CNN-DCT Steganography: Deep Learning-Based Image Steganography Over Cloud

• Original Research
• Published: 06 April 2024
• Volume 5 , article number  408 , ( 2024 )

Cite this article

• Shahnawaz Ahmad 1 ,
• Justin Onyarin Ogala 2 ,
• Festus Ikpotokin 3 ,
• Mohd. Arif 4 ,
• Javed Ahmad 5 &
• Shabana Mehfuz 6  

Image steganography plays a pivotal role in secure data communication and confidentiality protection, particularly in cloud-based environments. In this study, we propose a novel hybrid approach, CNN-DCT Steganography, which combines the power of convolutional neural networks (CNNs) and discrete cosine transform (DCT) for efficient and secure data hiding within images over cloud storage. The proposed method capitalizes on the robust feature extraction capabilities of CNNs and the spatial frequency domain transformation of DCT to achieve imperceptible embedding and enhanced data-hiding capacity. In the proposed CNN-DCT Steganography approach, the cover image undergoes a two-step process. First, feature extraction using a deep CNN enables the selection of appropriate regions for data embedding, ensuring minimal visual distortions. Next, the selected regions are subjected to the DCT-based steganography technique, where secret data is seamlessly embedded into the image, rendering it visually indistinguishable from the original. To evaluate the effectiveness of our approach, extensive experiments are conducted using a diverse dataset comprising 500 high-resolution images. Comparative analysis with existing steganography methods demonstrates the superiority of the proposed CNN-DCT Steganography approach. The results showcase higher data hiding capacity, superior visual quality with an MSE of 112.5, steganalysis resistance with a false positive rate of 2.1%, and accurate data retrieval with a bit error rate of 0.028. Furthermore, the proposed method exhibits robustness against common image transformations, ensuring the integrity of the concealed data even under various modifications. Moreover, the computational efficiency of our approach is demonstrated by a competitive execution time of 2.3 s, making it feasible for real-world cloud-based applications. The combination of deep learning techniques and DCT-based steganography ensures a balance between security and visual quality, making our approach ideal for scenarios where data confidentiality and authenticity are paramount. In conclusion, the CNN-DCT Steganography approach represents a significant advancement in image steganography over cloud storage. Its capability to efficiently hide data, maintain visual fidelity, resist steganalysis, and withstand image transformations positions it as a promising solution for secure image communication and sharing. By continuously refining and extending this hybrid model, we pave the way for enhanced data protection and secure cloud-based information exchange in the digital era.

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Acknowledgements

The authors acknowledge the financial support received own, for their support and encouragement in carrying out his college work. The authors also would like to acknowledge the administration of Bennett University, University of Delta, Ambrose Alli University, Galgotias University, Sharda University, and Jamia Millia Islamia, which the authors represent.

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Shahnawaz Ahmad

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Justin Onyarin Ogala

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Festus Ikpotokin

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Department of Computer Science and Engineering, Sharda School of Engineering and Technology Sharda University, Greater Noida, Uttar Pradesh, 201310, India

Javed Ahmad

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Ahmad, S., Ogala, J.O., Ikpotokin, F. et al. Enhanced CNN-DCT Steganography: Deep Learning-Based Image Steganography Over Cloud. SN COMPUT. SCI. 5 , 408 (2024). https://doi.org/10.1007/s42979-024-02756-x

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Received : 30 July 2023

Accepted : 07 February 2024

Published : 06 April 2024

DOI : https://doi.org/10.1007/s42979-024-02756-x

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