Sept. 22, 1986, marked a milestone in a protracted legal battle between Intel and NEC Corp. over copyright protection of computer code. As they fought for control of the microprocessor market, the two semiconductor companies—Intel American, and NEC Corp. Japanese—found themselves at odds over the copyright protections of microcode, the low-level instructions found in the brains of a PC.
Intel, creator of the 8086 and 8088 microprocessors found in the era’s IBM computers, alleged that NEC Corp. had infringed upon its copyright by creating compatible microprocessors. NEC Corp. posited its actions were allowed under a patent agreement, that the microcode itself was not copyrightable. (NEC Corp. had initiated the litigation, seeking declaratory relief when sales of its microprocessors were sluggish due to the threat of an injunction from Intel.)
Neither side emerged completely victorious. Distilling much legalese down, the U.S. District Court for the Northern District of California made three critical rulings for the industry:
- Microcode was indeed copyrightable.
- NEC Corp.’s reverse engineering of Intel’s code did not violate the copyright; and
- “Clean room” development of microcode was “persuasive evidence” of noninfringement.
Clean room development entails creating technology in an environment where no possibility of influence from outside sources exists. A clean room programmer only receives design specs of the target code, not an example of the target code, because without proof of access, copyright infringement cannot be proven.
The case continued after this ruling, with legal maneuvering from both parties. The courts ultimately ruled in 1989 that NEC had not violated Intel’s copyright. But the die was cast: Computer code enjoyed the same copyright protections as poetry or the Great American Novel.
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