A THEORY OF COPYRIGHT PART 2

Copyright does not protect the utilitarian features of an artifact expressed in a tangible medium. For instance an ash tray may have an aestetic feature such as its shape and perhaps an emblem in its well, but copyright only covers the shape and emblem aspects of the article, not its function and the accompanying features that make it an ash tray. So as previously indicated, if I explain how to make rubber, I cannot stop anyone from making or using the rubber so produced. As the Supreme Court has explained in numerous cases “ the teachings of science and the rules and methods of useful art have their final end in application and use and this application and use are what the public derive from the publication of a book which teaches them....” [1] Therefore the description of a machine design in a book secured by copyright lays no foundation for an exclusive claim to the machine itself. However, the machine’s design may be expressed in a patent, which will permit its holder to an exclusive claim to the function of the machine or its structure or both.

We have begun to witness erosion in the foregoing convention that utilitarian objects are not the subjects of copyright, notably where computer programs, digital protection devices and semiconductor designs are concerned.[2] Under the Copyright Act, computer programs receive copyright protection as "literary works. [3] In the case of computer programs, the law protects code to the extent it represents the non-functional components of a program. The difference lies between a human reading and copying an instruction and a machine reading and carrying out an instruction. Copyright protects the first and not the second event. Works protected by copyright include the steps a programmer employs before writing the code, such as flow charts, but also may include the very code itself.[4]  Nevertheless, because flow chart may be protected from copying does not prevent anyone from actually carrying out the procedure that the flow chart describes. A flow chart essentially addresses function, and function can only be protected under patent law, not under copyright law.

This fact that current copyright law protects code to the extent it represents the non-functional components of a program might someday prove a bane or boon to future biological technologists. Fundamentally, biological sequences and organic molecular sequences are one and the same. These have not been the accorded copyright protection. Genetic codes, proteomes and the like represented as language might be copyrighted, but courts have typically found that formulas such as chemical and mathematical formulas cannot be protected by copyright. The same idea would seem to apply here.

One can quite easily imagine that biotechnology will not always subsist in the intrinsic matter of molecules and cells, but in higher forms of expression, such as a coding language that relate directly to particular gene sequences. If sequences were embodied in a tangible medium, other than another biological medium, these kinds of expression might well be copyrightable. An analogy would be in the form of architectural drawings [5]or semiconductor designs. [6] Each of these expressions required laws specially drafted to accord a form of copyright protection that goes to the structure of the design. Prior to passage of the 1990 Architectural Works Copyright Protection Act, the law protected the architect’s plans, but not the work as fixed in the structure the plans represented. These kinds of protection are often far more effective than patents. The copyrights applicable to software currently provide protection that outlasts the useful life of most programs. If genetic sequences were copyrighted such protection would last for decades. 

The Copyright Act states that “[I]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”[7] Therefore, if the expression seems to provide a function, as would a switch or a dial then that expression is deemed functional and not protected by copyright laws. The same idea would hold if instead of function we were to speak of structure. Functionality and structure are subjects of patent law. This analogizes to a phenomenalist’s view of the difference between a “work of art” and the material thing upon or within which it is cast. [8]

The case in Lotus Development Corp. v. Borland International, Inc. dealt with the subject of distinguishing, functional purpose from expressive purpose. Such matters are far from crystal clear as evident from the decision of an equally divided Supreme Court affirming that computer programs are copyrightable to the extent that they do not contain any functional components. In the matter at hand the  “methods of operation” concerned the familiar spread sheet application.  Lotus 1-2-3 consists of a spreadsheet program that enables users to perform accounting functions electronically on a computer. Users control the program through a series of menu commands, such as "Copy," "Print," and "Quit." Lotus 1-2-3, like many computer programs, allows users to write what are called "macros" to designate a series of command choices with a single keystroke.

Borland did not deny that it included in its product a virtually identical copy of the words and structure of Lotus's menu command hierarchy; essentially the entire 1-2-3 menu tree. In doing so, it did not require that it also copy any of Lotus's underlying computer code. It claimed that it essentially copied the functionality.

The lower, trial court explored the multitude of variations on design that were possible and concluded that Lotus’s choice and arrangement of command terms, constituted copyrightable expression. However, the appeals court reversed:

“We think that "method of operation," as that term is used in…(The Copyright Act Sec. 102 (b)…) refers to the means by which a person operates something, whether it be a car, a food processor, or a computer. Thus a text describing how to operate something would not extend copyright protection to the method of operation itself; other people would be free to employ that method and to describe it in their own words. Similarly, if a new method of operation is used rather than described, other people would still be free to employ or describe that method. We hold that the Lotus menu command hierarchy is an uncopyrightable "method of operation." The Lotus menu command hierarchy provides the means by which users control and operate Lotus 1-2-3. If users wish to copy material, for example, they use the "Copy" command. If users wish to print material, they use the "Print" command. Users must use the command terms to tell the computer what to do. Without the menu command hierarchy, users would not be able to access and control, or indeed make use of, Lotus 1-2-3's functional capabilities...”

The fact that the literary aspect of computer programs can be protected by copyright, but that copyright does not protect the underlying functionality may be somewhat misleading in practice. If a computer program contains in its operative core an application that cannot be carried out in any other of steps except the steps in which it has been coded, functionality will have been largely protected. Only if the steps can be coded in another computer language, would the newly coded computer program potentially avoid the previous prototype’s copyright--and effectively carry out the same function. But, even here other tests of copyright come into consideration, that has little to do with literal copying, but copying the “look and feel” that embodies the sorts of considerations that courts weigh in any form of literary or artistic expression.

Also, commercial programs commonly consist of millions of lines of code. So, at the practical level one does not recode to achieve function. Licensing presents a less expensive alternative in acquiring the copyrighted version. Consequently, such efforts to recode commercially available programs simply do not occur with great frequency. For such products, copyright does act as essentially a guarantee against exclusive functionality. 

A more direct instance of controlling functionality through copyright can be found in cases such as Betamax.[9] In 1984 the Supreme Court agreed with Sony that its VCR did not contribute to infringement simply because VCR technology allowed home taping of television programs. But since then there has been no lack of interest in waging war against new technology that threatens the copyright monopoly.

In the early 1990s the Audio Home Recording Act Congress passed legislation that prohibits digital audiotape technology known as DAT from permitting copies to be made from its first generation recordings.[10] Each DAT comes with a Serial Copy Management System that prevents copies of copies and additionally requires manufacturers of the device to contribute funds in the form of royalties to record companies. The AHRA does not seem to prevent anyone with a CD ROM burner or recording system from making copies of copies, essentially again pointing out that protective legislation of the sort largely fails to deter copying.  

In 1998 following this line of copyright jurisprudence, Congress passed The Digital Millennium Copyright Act of 1998. The DMCA directed at least some of its effectiveness, as did the AHRA, at prohibiting the circumvention of locks to prevent data copying. This did not prevent Shawn Fanning a New Jersey college student from launching a small computer program that allowed him and his friends to swap music over the Internet. The idea had wings and in a very short time the idea was named Naptster. It was small, efficient and had phenomenal utility. As such it rapidly spread throughout the world of music enthusiasts (somewhere between 20 and 80 million users) much to the chagrin of the established recording industry. The recording industry waited about six months before it filed suit against claiming copyright infringement.

The ensuing court case involved the Recording Industry Association of America, as well as dozens of others who decided to chime in. Roughly one year from its incorporation the U.S. district Court for the Northern District of California issued an opinion granting the plaintiffs a preliminary injunction.[11] In February 2001, an appeals court upheld the lower court findings and conclusions.[12]

But, the Napster system was not dead because the system itself could not be regarded as an infringement. Only storing, copying and distributing the music could be. And, to be sure there were recordings that may not have been infringing on the system. So, in the final analysis the court required the plaintiff to identify just what recordings were being infringed. [13]

Enter the Pig Encoder, a technology that would permit Napster users to encrypt their files so that it would be impossible for anyone to read them and ascertain whether they were governed by a copyright. And, so it goes, where technology thus provides and thus takes away, in an ebb and flow of competing interests.