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March 21: Computers and fair use

     In 1976, computer technology was in its infancy and few ordinary people had ever used (or even seen) a computer.  Congress extended copyright protection to computer programs relying on the premise that computer software was enough like other literary works that it could be protected on the same terms as other literary works.  The legislative history makes clear that Congress believed that the idea/expression distinction set forth in section 102(b) Links to an external site. would enable copyright to protect the expression embodied in computer programs without giving copyright owners exclusive rights in the underlying ideas, systems, processes, or methods of operation.

     We've learned things since then that have complicated the story.  Computers and computer programs are functional -- they are designed to perform tasks.  For computer programs without published source code (which is most of them), it isn't possible to discover or examine the program's ideas, systems, processes, or methods of operation without making copies. Indeed, computers work by making copies.  If courts conclude that  the copies that matter for the purpose of copyright law include any appearance of any part of a work in computer memory, whether or not anyone ever sees the copy, then computers can't perform any task without making a lot of them.

     Because computer technology was new and unfamiliar in 1976, the copyright act doesn't include much in the way of express, specific limitations and privileges tailored for computer uses. (Section 117 Links to an external site. is where you can find the ones that are there.) That has meant that computer-related uses have had to rely more than older technologies on the limitations and privileges that courts can derive from section 107.

     All six of the cases that we are reading for this week involve commercially-motivated uses and repeated, verbatim copying.

 

Read the following edited cases: