The Illustrated Story of Copyright
© 2000 by Edward Samuels
Probably no technology has had a more profound effect upon copyright, upon the creative process, or, for that matter, upon our lives, than the computer. Before getting into the intricacies of copyright, however, it will be helpful to spend just a little time exploring what computers are and how they work.
The real guts of most computers is the central processing unit, or CPU. (The underlined key phrases are illustrated in the diagram on this page.) Basically, this central processing unit is a very fast traffic cop. It receives information, in the form of electronic impulses, and reroutes it to other parts of the computer. These impulses are simply electronic on/off switches. Ultimately, all the information a computer receives, stores, manipulates, and sends is simply electronic impulses that are either “on”—there is an electrical charge stored in a particular place in the computer—or “off”—the relevant location in the computer does not have an electrical charge. The CPU does its magic by handling an amazingly large number of  operations in a very short period of time—about a billion operations per second on the most recent generation of computers.
Another important function of the computer is the simple storage and retrieval of electronic impulses in what is called the memory unit of the computer. The memory unit stores the electronic impulses so that they can be retrieved by the central processing unit at a later time.
 Only $1,295!
This is a picture of a complete general purpose computer, here about twice actual size, from the cover of Scientific American (May 1975). The computer was made by Teledyne Systems Company from chips manufactured by National Semiconductor Corporation. The two largest chips, in the center, were integrated circuits containing what at the time was the remarkable capacity of six thousand transistors each. These two chips controlled the four slightly smaller chips devoted to arithmetic and logic circuits, and the numerous other chips. The computer, mounted on a ceramic wafer and with six glass-insulated conducting layers, communicated with the outside world through 120 leads, 30 on each side. The cost of the computer at the time was $1,295.
There are different types of memory in computers. Random access memory, or RAM, is basically short-term memory that’s stored in such a way that it’s immediately accessible to the central processing unit. In most computers, the electronic impulses in RAM must be constantly recharged. Think of RAM as live electricity flowing through the system. Turn off the computer, and the flow of electricity ceases—the information stored in RAM disappears. This form of memory is very good for information you want to access and process very quickly, but it isn’t very good for storing a word processing document until you need it next Thursday.
For that longer-term memory, you need some form of storage unit that will reliably retain the information well after the computer itself is turned off. One storage device is a hard drive, which basically records a copy of the electronic impulses on platters that spin within the computer. Other storage devices are magnetic tapes or floppy drives, magnetic disks or optical disks, or CD-ROMs, all of which store the information on a separate medium that can be removed from the computer and reinserted at a later time, or can be transferred to other computers to share the information encoded on them.
Some information is so critical to the operation of the computer that you want it always to be accessible, and not normally altered. Such critical information  is usually contained in a permanent storage unit known as read-only memory, or ROM. Think of ROM as the hard-wired circuits that can’t normally be changed by the user of the computer. (You might notice that the line between computer memory and storage is not at all a fine one. For reasons that may be more historical than functional, read-only memory and random access memory are usually considered memory units, while hard drives and removable media are usually considered storage.)
Other parts of the computer are the arithmetic unit, which can add, subtract, multiply, divide, and
perform other advanced calculations; input
devices, such as a keyboard, a mouse, a microphone, a midi (musical interface
device), or various devices that allow the computer to recognize video images
from a television receiver or video camera or video recorder; output devices, such as a computer
monitor, a printer, or speakers; and connections to allow the computer to
communicate with other computers through direct connections or over telephone
lines. Once computers can access telephone or other long-distance lines, they
can be linked via global networks like the Internet, so that practically any
computer can access any other computer, wherever located.
At the end of this chapter, we’ll take a look at the profound effect computers have had on a broad range of creative works. For most of the chapter, however, we’re going to focus upon the protection of a new form of creative work: the computer program that controls all of the information inside a computer and makes it work its magic.
What, exactly, is a computer program? In the words of the Copyright Act (as amended in 1980), a computer program is “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” There are several different ways of categorizing computer programs. One traditional distinction is between object code and source code. Object code is simply the program as it’s stored in the computer, the ones and zeroes, the ons and offs that tell the computer precisely what it’s supposed to do. This is the language that only a computer would love. Even a sophisticated computer programmer can’t really decipher all these ones and zeroes, and doesn’t usually write  programs directly in object code. Instead, the programmer usually writes in source code, a more abstract, or “higher,” programming language, such as Basic or C or PASCAL, and uses a computer program, a compiler, to convert the humanly intelligible source code into the computer intelligible object code.
A simple programming example will illustrate the distinction. Let’s say I want to write a simple computer program that will ask the user for two numbers, and then respond by calculating their sum. Here’s how the program might look in an old version of Basic, a relatively straightforward programming language that unfortunately is hardly ever used anymore.
10 Input A
20 Input B
30 Let C=A+B
40 Print “The sum of your two numbers is ”; C
Here’s what this program would accomplish on a computer that was set up to run Basic: at lines 10 and 20, the program would stop and wait for the user to input two numbers (that’s what the instruction “Input” is defined to do in Basic). It would then select a portion of its memory, give the memory locations the titles “A” and “B,” and store the two numbers in those locations. In line 30, the computer would go to the locations labeled “A” and “B,” take the numbers previously stored there, send them to the arithmetic unit for addition, and store the result in a portion of memory labeled “C.” In line 40, it would print out literally the words in quotation marks, followed by the number which is now stored in the portion of memory previously labeled “C.” On a computer screen, the running of the program would look something like this, with the underlined portions entered by the user:
The sum of your two numbers is 35
This Basic program is relatively easy for humans to understand and work with, because it’s written in source code. In fact, humans could work with this program, analyze it, and discuss it without ever entering it into a computer. As entered into any particular computer,  however, it’s reduced to computer instructions—or object code—that implement the above Basic program on a particular type of computer.
| Super Mario Brothers.|| Super Mario 64.|
Of course, computer programs get much more sophisticated
than our example. Programs have been written that will allow word processing,
graphic image processing, sound processing, and video processing on a
sophisticated level. The cutting edge of the technology is usually reflected in
the games. It was only in the early 1970s that the first commercial computer
video game was made available to the  public. That game, Pong, was basically
little more than a light blip that was moved around the screen to simulate a
Ping-Pong game. What I think of as the second generation of computer games were
games like Pac-Man, a program that could move simple imaginary characters
around a relatively stationary two-dimensional grid. We might think of the
third generation of games as the Mario Brothers type game, a still basically
two-dimensional game, but with characters that moved around with much greater
fluidity and sophistication: Mario walked across two-dimensional side-scrolling
backgrounds, and interacted with those backgrounds. The fourth generation of
games is represented by StarFox or Star Wars or Super Mario 64, in which the
background scenery constantly changes so as to simulate a three-dimensional
view of a virtual space. It’s hard to even imagine the amount of
information—the hundreds of millions of operations per second—the computer has
to process in each frame, at the rate of many frames per second, in order to
create a realistic image that “puts” the viewer into the scene displayed on the
computer monitor. The position of practically every pixel on the screen has to
be recalculated, based upon the complicated three-dimensional contours of the
“characters” and background of each scene.
As the games and word processing and business programs have become more and more complicated, the investment in developing them has increased dramatically. Today, the development of a new computer program can cost millions of dollars and hundreds of thousands of programmer-hours. If you’re a developer who spends all that time and energy to bring your program to market, you certainly don’t want to have teenage kids send free copies of your latest version of MegaDoom to all their friends over the Internet, or have business executives distribute dozens or hundreds of copies of your latest version of MegaWord to all the employees over the company’s network, for free. You expect to get compensated, and you probably wouldn’t develop the software if you didn’t think you would be compensated.
During the 1960s and 1970s, programmers began asking how they could protect their creations in the marketplace. One method that’s met  with some success is the development of physical copy protection systems. That is, you write the program so that it won’t work unless the user types in the proper password or serial number, or inserts a disk containing a legitimate copy of the program. The problem with using such physical protection is that many legitimate users are unhappy with the system. What happens if you forget the password, or if you don’t happen to have the original program disk when you want to run the program from your hard drive? Can you make backup copies to protect against the possibility that something goes wrong with your initial disk? What most software companies learned during the seventies and eighties is that legitimate users complained strenuously about overly burdensome copy protection systems; and so, most companies abandoned all but the most straightforward such systems.
 Can computer
programs be patented?
When their patent application was rejected by the patent office, Benson and Tabbot sued Robert Gottschalk, the acting commissioner of patents. The case went to the Supreme Court, which in 1972 held that the computer program was not patentable. As stated by Justice Douglas:
procedure for solving a given type of mathematical problem is known as an
“algorithm.” The procedures set forth in the present claims are of that kind;
that is to say, they are a generalized formulation for programs to solve
mathematical problems of converting one form of numerical representation to
another. . . .
 In recent years, the patent office has begun granting patents for computer programs, particularly ones that are part of methods of doing business. Some of these patents are controversial, and it remains to be seen how extensive such patent protection will be in the future.
Some companies tried patent protection* of their programs, but there were several problems. The level of creativity required to get a patent is too high, and most computer programs don’t qualify. In any event, it usually takes about a year or two to get a patent, and in the software business, one year and you’re obsolete. And the Supreme Court, in a fascinating early case, held that a computer program—or at least the program in that case—was simply a mathematical algorithm, and not an “invention” subject to patent.
Some companies tried trade secret law.† If you only disclose your program to people who agree not to further disclose it, you can legally enforce their promises not to disclose. This worked for some computer setups, where the software supplier retained some control over the use of the software program. But it didn’t work very well for the new desktop computers, where copies of the software were sold to the users, and could be studied and sometimes deciphered by them.
As we saw in some detail in chapter 1, copyright is an effective method of protecting creative works,  designed to encourage the making of such works by granting certain exclusive rights in them. Why not bring computer programs within the scope of copyright protection? After all, copyright has been around for a long time, and it seems to work. It’s easy to get a copyright, because you don’t have to go through any particular qualifying applications. The threshold of copyrightability is pretty low. All you have to do is create something original—that is, that you figured out yourself, and didn’t simply copy from someone else.
There are some conceptual problems in using copyright as the form of legal protection to cover computer programs. Under the “works of utility” doctrine,* functional works are not the proper subject of copyright protection. Under that doctrine, how can copyright protect a computer program, the purpose of which is to run a machine? Computer programs are simply different from most creative works: while copyrightable works are generally designed for human communication, isn’t communication with a machine something of a different order?
Some commentators suggested that computer programs didn’t fit neatly into any of the existing forms of legal protection of creative works—patent, copyright, trade secret, or anything else. What we needed, these commentators suggested, was some new form of protection designed specifically to protect computer programs.
 The argument for copyright protection: the Commission majority (1978).
The cost of developing computer programs is far greater than the cost of their duplication. Consequently, computer programs . . . are likely to be disseminated only if:
(1) The creator can recover all of
its costs plus a fair profit on the first sale of the work, thus leaving it
unconcerned about the later publication of the work; or
 The argument against copyright protection: John Hersey's dissent (1978).
In the early stages of its development, the basic
ideas and methods to be contained in a computer program are set down in written
forms, and these will presumably be copyrightable with no change in the 1976
Act. But the program itself, in its mature and usable form, is a machine
control element, a mechanical device, which on Constitutional grounds and for
reasons of social policy ought not to be copyrighted.
To cut a long story short, all of this, by now, is actually ancient history. For the most part, we’ve opted to treat computer programs as creative works protectable under the copyright laws. This might not be obvious from the Copyright Act itself, since the Act does not list computer programs as one of the eight categories of works covered by copyright. But one of the categories of works is “literary works,” and literary works are defined to include works “expressed in words, numbers, or other verbal or numerical symbols or indicia.” During the congressional discussions leading up to the 1976 Copyright Act, Congress concluded that computer programs were within the definition of “literary works,” even though computer programs clearly had features that were unlike those of any literary works that had previously existed. So, whether or not it seems intuitive, and whether or not the statute seems clear,  computer programs are “literary works,” and, as such, they are protected by copyright.
 Another argument against copyright protection: Office of Technology Assessment (1986).
Although the copyright law adopts a uniform approach
to protected works, not all types of information-based products are the same,
nor can they be treated as if they were. A list of stock and bond prices, for
example, differs from the musical score or a motion picture, and both of these
are distinct from a computer program. In the case of stock prices, the value is
in the information itself—the number of shares traded and the daily fluctuation
in prices. The value of a musical score, in contrast, lies in the way it sounds
to an audience—the appeal of its melody, rhythm, and harmony. And computer
programs are valued for what they do—their effectiveness at performing a given
task in a computer.
Even as Congress passed the 1976 Copyright Act, it established the National Commission on New Technological Uses of Copyrighted Works (CONTU) to analyze, among other things, the appropriateness of the copyright approach. That Commission concluded that computer programs were and should be copyrightable, and recommended a minor amendment to the Copyright Act that Congress adopted in 1980.* The amendment created a “limitation” on the copyrightability of computer programs by specifically allowing users to make archival, or backup, copies of programs, and to make minor adaptations necessary to get programs to run on their particular machines. These exceptions would hardly have been necessary unless computer programs were otherwise already covered by the Act. So, while the statute still does not say in so many words that computer programs are copyrightable, the 1980 amendment, by carving out a limited exception, implicitly confirms that they are. To be sure, there was a well-reasoned dissent to the CONTU report, as well as periodic negative comments by various commentators over the years. But by now it’s a done deal: computer programs are copyrightable.
The only remaining question is not whether computer programs should be protected by copyright, but to what extent they should be protected. This is not an easy question, since computer programs are not obviously or easily amenable to analysis under traditional copyright principles.
Let’s turn now to two of the leading cases in which the courts have proven themselves able to resolve the tough issues. We’ll look later at the ways in which Congress has felt it necessary to change the existing laws in order to accommodate the particular problems raised by protecting computer programs.
| The Apple prototype—using a Mostek 6502 microprocessor, four kilobytes of memory, and a cassette recorder for storage of programs and data—can now be viewed in the Smithsonian Institution.|
 The first commercial Apple computer, with its own keyboard, monitor, disk drives and power supply.
One of the great success
stories of the computer industry is that of Apple Computer, Inc., which
developed the Apple II, one of the first more or less user-friendly desktop
computers. The computer was assembled in 1976 by a couple of enterprising kids
in their parents’ garage using standard parts that were readily available,
designed around the new, cheap 6502 chip manufactured by Mostek. Within months,
dozens of companies were developing software to run on Apple’s new machine. The
big breakthrough for Apple came with the development of the first truly
successful spreadsheet program, VisiCalc, in 1979. In its first year, VisiCalc
was available only on the Apple; and it was so successful that it resulted in
the sale of many Apple computers to businesses and individuals who wanted or
needed to have VisiCalc.
 Two kids in
Woz had designed a single-board
computer around the Motorola 6800 microprocessor. While the 6800 was fairly
powerful, it was also fairly expensive at $175. In 1976, a small company called
MOS Technology announced a pin-for-pin replacement for the 6800 called the
6502. Although it performed many of the same functions as the 6800, it cost
Shortly after Apple introduced its computer, Franklin Computer Corporation tried to duplicate Apple’s achievement. It designed its computer, the Franklin Ace 100, around the same 6502 chip that Apple had used. Franklin realized early on that it would be very difficult to compete with Apple and other existing computer manufacturers. When first introduced, a new computer would have virtually no software that it could run, while the existing computer manufacturers had the advantage of hundreds of programs already up and running. Franklin’s solution was to make its computer “Apple-compatible.” That way, Franklin could plug into the existing software and peripherals that were already designed to run with Apple computers. To achieve compatibility, Franklin thought it was not enough to simply use the same computer chip that Apple used; it also had to duplicate some of the Apple operating  system. That is, in developing the software to run its machine, Franklin copied various portions of the computer programs Apple used to run its machine.
Without yet getting to the legal arguments, Franklin’s practical assessment may have been correct. It might be possible to write an operating system that would make Franklin’s computer look very much like an Apple. But unless it were precisely the same, it would be hard to guarantee that a program that ran on an Apple would run on a Franklin. For example, a program like VisiCalc, written to run on the Apple operating system, might be written on the assumption that certain specific operating instructions, like telling the printer to print a copy, or telling the monitor to move a pointer, were controlled by instructions at particular locations in the Apple operating system. These are known as “entry points,” the precise locations within an operating system where specific instructions can be found. If Franklin wrote its own operating system, then some of the critical entry points would be at different locations. So if you tried to run VisiCalc on a Franklin, and VisiCalc tried to make a call to the location where it expected printer instructions, and those instructions weren’t there, then your computer would crash.
In order to achieve Apple compatibility, Franklin simply copied parts of Apple’s operating system. And, no surprise, Apple sued Franklin for copyright infringement of its computer programs. Apple’s argument was straightforward: Computer programs are copyrightable; copying and distributing are exclusive rights of copyright; so Franklin’s copying and distributing* of Apple’s computer programs are a copyright infringement.
Franklin made several counterarguments. It could hardly argue that computer programs weren’t copyrightable, since that, at least, was clear from the 1976 Act and its legislative history. Instead, Franklin argued, more specifically, that these computer programs weren’t copyrightable for three somewhat overlapping reasons: (1) they existed in  the Apple computer in object code, and object code, as part of a machine, was a “work of utility,”* and therefore not copyrightable; (2) some of the programs were embedded in the ROM of the Apple computer, and ROM, as part of a machine, was not copyrightable; and (3) the programs were part of the operating system, and, as such, a functional part of the computer; as part of the “process, system, or method of operation,”† under section 102 of the Act, it was not copyrightable. Although the district court was sympathetic to Franklin’s arguments, the Third Circuit Court of Appeals ruled in favor of Apple on the copyrightability issues. The programs were copyrightable even though they were in object code, even though they were embedded in ROM, and even though they were part of an operating system. The court held that there was no basis for making the distinctions Franklin had urged: computer programs were copyrightable no matter what form they might take. Franklin ultimately settled the case for a large cash payment, undertook to develop a separate operating system, and then proceeded to fail in the marketplace.
†Process, system, or method, see p. 188.
So what is a company like Franklin to do? It’s theoretically entitled to make a new computer using the same chip Apple used. But if the computer can’t be made Apple-compatible, then there will be no software to run on the new machine, and it will have a difficult time getting out of the starting gate. Apple thus gets an indirect benefit from a lot of programs that are not written by Apple at all, but by third parties to run on Apple machines. Well, the court was unsympathetic to this argument, stating that “Franklin may wish to achieve total compatibility with independently developed application programs written for the Apple II, but that is a commercial and competitive objective” which did not enter into the consideration of whether Apple was entitled to copyright in its operating system.
 The original
Macintosh desktop, showing icons
representing folders, applications, and documents, and windows showing and
controlling open applications.
| Microsoft Windows 3.0.|
Apple’s next breakthrough was the development of the Macintosh computer in 1984. The Mac, as it came to be known, represented the first major successful use of a graphical user interface to run a desktop computer. Instead of typing in archaic lines of code that were gibberish to the uninitiated, the idea of the Macintosh was that major computer functions were represented by images, or icons. The user could run the computer by simply clicking on pictures. For example, to open a particular application, you didn’t have to type in the name of the program you wanted to run, but, using a pointing device known as a mouse, you just moved a cursor to a picture of the program and clicked twice. To open a file, or a work in progress, you just double-clicked on a visual representation of the file. The images were laid out on the screen in ways that allowed for their easy manipulation. You could store files in folders, and folders in folders, to organize your programs and data. You could click on “windows” that contained different groups of programs and data, and move the images from one window to another. You could open windows to work on them, and close them to clear them away from the screen while you worked on something else.
 The first
graphical user interface.
One of the people who admired this new graphical way of running computers was Bill Gates, the person who in his early twenties had developed the DOS operating system that ran the IBM computer, as well as most other desktop computers. In 1983, Gates’s company, Microsoft, developed the Microsoft Interface Manager as a graphical overlay to the existing DOS operating system. The problem was that the program didn’t work very well, particularly when compared with the Macintosh operating system that was introduced the following year. In 1985, Microsoft signed a licensing agreement with Apple, under which Microsoft was  allowed to incorporate certain features of the Macintosh interface into its new program. Although it took several more years to get it right,
Windows 3.0, released in 1990, finally seemed to answer most of the problems with earlier versions of the program. Windows 3.0 was an immediate success, and eventually became the most successful computer program ever written. It made the awkward DOS operating system almost manageable. It also made Microsoft look like a monopoly, leading to one of the largest antitrust lawsuits since the breakup of AT&T—but that’s the subject of a book on antitrust.*
Apple, by this time regretting its licensing agreement, claimed that the new version of Windows was not included within the earlier arrangement, and sued Microsoft for copyright infringement. This suit, however, was completely different from its earlier suit against Franklin. While Franklin had clearly copied portions of Apple’s actual computer program—its operating system—Microsoft did not copy any of the actual code from the Apple operating system. Microsoft basically wrote a completely different computer program that nonetheless copied the effect, or the “feel,” of a Macintosh.
Microsoft raised several defenses, based upon some of the basic copyright principles we’ll discuss in Part Two. It argued that what it had taken was merely the “idea” of Apple’s graphical user interface, not any of the actual expression,† or code. It had taken some of the functional elements, but the functional elements, under the works of utility doctrine,‡ were not protected by copyright. Microsoft also argued that certain of the features in the Macintosh operating system were not original• to Apple, but in fact owed their origin to earlier prototypes, particularly the Xerox Corporation’s Star computer. And many of the features, Microsoft argued, were covered by its earlier licensing agreement with Apple.
 In a series of decisions in the federal district court in California, Apple basically got trounced. The court concluded that most of the elements of Apple’s graphical user interface were not protected by copyright, either because they were not original with Apple, because they were functional, or because they were covered by the original licensing agreement.
There are other computer copyright cases, but they are basically consistent with the Apple cases. Copying of computer code generally constitutes a copyright infringement, but copying of the “idea” of a computer program does not. Of course, the problem in many cases is in deciding what constitutes “idea” and what constitutes “expression”—and on this point, courts sometimes disagree. Yet, despite the early doubts and the not-so-perfect match, courts have found that the basic principles of copyright—originality, works of utility, the idea-expression distinction, substantial similarity, and fair use*—also work just fine in determining the copyrightability of computer programs.
 Narrowing the scope of protection.
Even while the courts were tackling some of the tough issues raised by the decision to include computer programs within the scope of copyright, Congress was also fixing some of the problems that it thought should not have to await judicial resolution.
In 1980 Congress passed an amendment to the Copyright Act that created a limited exception to the rights of copyright in computer programs.† The amendment specifically allows purchasers of computer programs to make backup copies for archival purposes, and  to make adaptations necessary to get the program to run on a particular machine. Of course, if the computer program comes with some sort of physical copy protection system, it might not be possible for the user to make such copies; but the making of such copies, for the purposes specified in the amendment, would not otherwise violate the copyright law.
 A limited exception for computer programs.
the provisions of section 106, it is not an infringement for the owner of a copy
of a computer program to make or authorize the making of another copy or
adaptation of that computer program provided:
 Reasons for the exception (subsection 1).
of a lack of complete standardization among programming languages and hardware
in the computer industry, one who rightfully acquires a copy of a program
frequently cannot use it without adapting it to that limited extent which will
allow its use in the possessor’s computer. The copyright law, which grants to
copyright proprietors the exclusive right to prepare translations,
transformations and adaptations of their work, should no more prevent such use
than it should prevent rightful possessors from loading programs into their
computers. Thus a right to make those changes necessary to enable the use for
which it was both sold and purchased should be provided.
Back in 1984, before it was clear that copyright would or could be made to effectively protect computer programs, the computer industry convinced Congress to pass a statute creating exclusive rights in computer semiconductor chips. A semiconductor chip is defined in the statute as a product “having two or more layers of metallic, insulating, or semiconductor material, deposited or otherwise placed on, or etched away or otherwise removed from, a piece of semiconductor material in accordance with a predetermined pattern.” These chips are usually made of silicon crystal, and the patterns are etched into the chips in layers so that they interact like miniature electronic circuits, connecting miniature transistors (that is, circuits that control other circuits). The chips are made up of as many as a dozen or more layers: each layer is designed by making a large scale “mask work,” which functions something like a photographic negative in that it allows the making of copies. The images produced from the mask works are miniaturized and embedded one on top of the other to make the three-dimensional semiconductor chip. It’s these chips that form the guts of virtually all computers manufactured today. Their main feature is that they are tiny: a sophisticated chip like the Intel Pentium CPU chip measures only 1.5 square inches, yet contains 3.1 million transistors.
| The first microprocessor chip, the Intel 4004, containing 2250 transistors on a single chip.|
 An engineer working on a mask work.
| The final product: the 4004 chip (detail). [The image shown here is the complete chip, not just a detail.]|
The problem, as far as the computer industry is concerned, is that it’s relatively easy—or at least in 1984 it was relatively easy—for someone  to take a semiconductor chip, effectively strip away the layers, and use the chip as the model for making a limitless number of copies. So, what takes months or years, and maybe millions of dollars to develop, can be copied and mass-produced in a matter of weeks or days. Congress understood immediately that such practices, if widespread, would destroy the computer industry. Its response was the Semiconductor Chip Protection Act of 1984, which granted exclusive rights to the developers of semiconductor chip products.
 Separate protection for mask works and semiconductor chips.
Committee decided that the formidable philosophical, constitutional, legal and
technical problems associated with any attempt to place protection for mask
works or semiconductor chip designs under the copyright law could be avoided
entirely by creating a sui generis form of protection, apart from and
independent of the copyright laws. The new form of legal protection would avoid
the possible distortion of the copyright law and would establish a more
appropriate and efficacious form of protection for mask works. Rather than risk
confusion and uncertainty in, and distortion of, existing copyright law as a result
of attempting to modify fundamental copyright principles to suit the unusual
nature of chip design, the Committee concludes that a new body of statutory and
decisional law should be developed. It should be specifically applicable to
mask works alone, and could be based on many copyright principles, and other
intellectual property concepts; it could draw by analogy on this statutory and
case law framework to the extent clearly applicable to mask works and
semiconductor chip protection, but should not be restricted by the limitations
of existing copyright law.
The new law was based loosely upon copyright principles. For example, only original works were protected, borrowing the lesser standard of originality* from copyright, rather than the higher standard of novelty from patent. Some features were different from copyright. For example, the period of protection was only ten years, much less than in the case of copyrighted works generally.† Although the act was codified in chapter 9 of title 17 of the U.S. Code, right after the Copyright Act that comprised chapters 1 through 8, it was decided that semiconductor chip products should be treated separately from copyright. There were at least two reasons for doing this: first, it was thought that separate treatment would avoid possible distortions of basic copyright principles to make them fit the new type of work. And second, if such protection were included under American copyright law, it might trigger U.S. treaty obligations‡ to give equal protection to foreign creators of such works even though their own countries didn’t grant similar protection to United States citizens. By keeping the law separate, the U.S. could withhold protection for foreigners, or could negotiate to get other countries to specifically pass reciprocal laws.
‡International treaties, see p. 241.
Curiously, the Semiconductor Chip Protection Act has turned out not to be all that important. Registrations for mask works were below expectations, and in the first ten years after its passage, there was only one reported case brought under the act. Why should this be? To some extent, the evolving technology of semiconductor chips may have made it more difficult for others to make copies anyway. Or maybe it’s just that copyright protection of computer programs has developed so effectively  and so rapidly that semiconductor chip protection just isn’t that attractive anymore. If you manufactured such a product, would you be more interested in the ten-year protection of your chip, or the ninety-five-year protection of the contents of the chip? (Actually, there’s no need to choose; both types of protection are granted.)
In any event, while the Semiconductor Chip Protection Act was initially praised as a model for “sui generis” statutes—separate statutes for particular types of creative works—such special protection has turned out not to be nearly as effective as the protection afforded under the more general principles of copyright.
The “first sale” doctrine* provides that, once a purchaser has bought a copy of a copyrighted work, the purchaser normally may resell, rent, or otherwise dispose of that particular copy of the work, so long as the purchaser doesn’t make further copies. This caused problems in the music industry, because, it was thought, the rental of records or CDs inevitably led to the home copying of those works. Congress responded to the problem in 1984 by making an exception to the “first sale” doctrine for CDs and sound recordings:† while purchasers of such works could resell them, purchasers were prohibited from renting them.
In 1990, the computer software industry was successful in convincing Congress that it should be afforded similar treatment to sound recordings. If companies were allowed to purchase computer programs and rent them to the public, then the public would very likely use such rentals to make copies of the computer programs that would displace sales. For example, if you could rent a copy of Adobe Photoshop for, let’s say, $20, and it costs about $500 to buy a copy, then you might be awfully tempted to simply make a copy from the one that you’d rented. To prevent this, Congress  amended section 109 of the Act to extend the exception to cover computer programs as well as sound recordings. “[N]either the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program . . . may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program . . . by rental, lease, or lending . . . .”
But, you say, your kids rent copies of the latest version of Super Mario or Final Fantasy, or other Nintendo or Playstation video games, from the local video rental store. That’s because of an exception to the exception. The exclusive rental right for computer programs created by section 109 does not apply to “a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games. . . .” What does that mean? It means that a video store can rent video games that run on dedicated systems, like the Nintendo system, from which they cannot normally be copied. If your kids rent such games, they can’t easily make copies of them, and so the rental does not lead to a copy that displaces a sale.
So far in this chapter, we’ve been looking at how copyright has come to embrace and protect computer programs, the new type of creative work that makes computers do what they do. But computers have raised a much broader issue for copyright.
As we’ve seen in the previous chapters, copyright protects books and magazines, music and records, plays and movies, and now, computer programs. We'll explore many other types of protected works in chapter six. With the advent of the computer, however, all of these works are being digitized to make them accessible to the computer. We create our literary works on computers, using word processors to manipulate the words and letters as part of the creative process, and to store vast amounts of information on new media such as disks and CD-ROMS. Using image scanners and digital cameras, or plugging our video recorders and camcorders into our computers, we capture pictorial and photographic images, even moving images, in pixels that can be displayed and manipulated on a computer screen and stored in ever smaller amounts of space. Using  musical interface devices (midis), we “sample” music electronically, reducing sound itself to pure information that can be captured, stored, manipulated, and copied with remarkable consistency and fidelity.
It’s the digital revolution. If you could look inside the memory of a computer, you’d see all the electrical impulses, stored in a binary code of on/off switches. If you saw these electrical or magnetic impulses, you couldn’t immediately tell whether what you saw stored in any part of the computer was words, images, sounds, or computer programs. But the computer itself keeps track of what type of information is stored where, and can easily transform the information back into the words, images, and sounds that make sense to us as humans.
With the computer, we can create works, copy them, distribute them, perform them, and transform them. As we’ll see in chapter 7, these are precisely the exclusive rights that are supposed to be protected by copyright. Clearly something has got to change in how we think about these creative works.
We’ll get back to some of these basic questions. But first, we’ll look at the Internet, the popular new way of distributing the vast amounts of information we’ve accumulated and digitized.
 My favorite early CD-ROMs.
 A favorite
It’s interesting to contrast the legislative response to new technologies in the context of music, television, and computer programs. As we saw earlier, Congress adopted highly technical regulatory schemes to handle some of the big copyright issues raised by digital technology in the music industry. Relatively few new laws were required for motion pictures and television. In this chapter, we’ve seen that although Congress has adopted some amendments to handle specific problems  in administering copyright in computer programs, for the most part it’s the courts that are deciding the major computer copyright issues, and they’re doing so on traditional copyright principles, not the legislation directed specifically at protecting computer programs. This may seem surprising, given the number of commentators who had originally argued that computer programs were just too new, too different from traditional notions of copyright, to expect a workable solution to be developed.
Yet a reasonable balance has been struck, and it
seems to be working fairly well. Indeed, the United States has been so
successful in developing standards for protecting computer programs that it’s
even begun exporting the concept. While many European and other countries had
originally balked at the notion of treating computer programs as within the
subject matter of copyright, the United States has recently prevailed upon most
of the rest of the world to protect computer programs under copyright.
 Another favorite program.
Another favorite program is Kai’s Power Goo, with which a user can manipulate pictures in all sorts of fascinating ways—again, all because the information is stored in digital form that can be readily altered. With apologies to the artist, here is a relatively mild distortion of the Mona Lisa. Many wilder variations are available using the tools pictured here—grow/shrink, move, smear, smudge, nudge, mirror toggle, smooth, and ungoo which undoes any of these effects. Using another set of tools, the user can bulge, twirl, rotate, stretch, spike, or “static” the image, or unwind any of these effects. Don’t ask what these tools do; finding out is half the fun. Using the sliding switch at the left, the user can ease the effects in and out of the image. Or the user can record a succession of different images at the bottom, and the program creates a smooth “goovie” moving from one distortion to another. All of this is of course good clean fun, since Leonardo da Vinci is dead and the Mona Lisa is in the public domain. But what if the artist is alive and the original work is still copyrighted? Stay tuned for further developments.
| 3-D rendering program. Using Ray Dream Studio, my daughter, Claire, constructs three-dimensional models in which the instructions for reproducing characters, objects, and background are stored as basic information. By relatively easy manipulation, the characters can be moved around, seen from different perspectives, or strung together over time to make animated movies. Shown here is “Trish,” a cartoon cat.|
It’s my own opinion that the treatment of computer programs, leaving the tough issues to be developed by the courts based upon general copyright principles, has led to a more satisfying and nuanced resolution. As we face the copyright issues raised by other new technologies, such as the Internet, I would argue that the preferable approach is not to run to Congress for quick fixes to every tough question, but, if possible, to allow a little time for the courts to work out the issues.
Go to Chapter 5: The Internet
Permission, Limitations, and Format