CONTU: Concurring Opinion of Commissioner Nimmer

I concur in the Commission’s opinion and in its recommendations regarding software. I do, however, share in a number of the doubts and concerns expressed in Commissioner Hersey’s thoughtful dissenting opinion.125 What is most troubling about the Commission’s recommendation of open-ended copyright protection for all computer software is its failure to articulate any rationale which would not equally justify copyright protection for the tangible expression of any and all original ideas (whether or not computer technology, business, or otherwise). Ifliterary works are to be so broadly construed, the Copyright Act becomes a general misappropriation law, applicable as well in what has traditionally been regarded as the patent arena, and, indeed, also in other areas to which neither copyright nor patent law has previously extended. This poses a serious constitutional issue in that it is arguable that such an approach stretches the meaning of authorsand writings as used in the Copyright Clause of the Constitution beyond the breaking point. Apart from the constitutional issues, it raises policy questions, the full implications of which remain murky at best. Still, at this time, knowing what we now know about the nature of the computer {Page 27} industry, its needs, and its potential for great contributions to the public welfare, I am prepared, on balance, to support the Commission’s conclusions and recommendations.

At the same time I should like to suggest a possible line of demarcation which would distinguish between protectible and nonprotectible software in a manner more consistent with limiting such protection to the conventional copyright arena. This suggestion is made not because I recommend its immediate implementation, but rather because it may prove useful in the years to come if the Commission’s recommendation for protection of all software should prove unduly restrictive. In such circumstances it may prove desirable to limit copyright protection for software to those computer programs which produce works which themselves qualify for copyright protection. A program designed for use with a data base, for example, would clearly be copyrightable since the resulting selection and arrangement of items from such data base would itself be copyrightable as a compilation. Thus, a program designed for use in conjunction with a legal information retrieval system would be copyrightable, since the resulting enumeration of cases on a given topic could claim copyright. A program designed for a computer game would be copyrightable because the output would itself constitute an audiovisual work. (For this purpose the fact that such audiovisual work is not fixed in a tangible medium of expression, and for that reason is ineligible for copyright protection should not invalidate the copyright in the computer program as long as the program itself is fixed in a tangible medium of expression.) On the other hand, programs which control the heating and air-conditioning in a building, or which determine the flow of fuel in an engine, or which control traffic signals would not be eligible for copyright because their operations do not result in copyrightable works. The fact that such a program might also provide for a printout of written instructions (which would be copyrightable) would only render protectible that particular aspect of such a program.

The distinction here suggested appears to me to be consistent with the recognized copyrightability of sound recordings. It sometimes has been argued that while printed instructions tell how to do work, computer programs actually do the work. But this is also true of sound recordings, which in a sense constitute a machine (the phonorecord) communicating with another machine (the record player). A sound recording contained in a phonorecord does not tell a record player how to make sounds which constitute a Cole Porter melody. Rather, it activates the record player in such manner as actually to create such a melody. But Commissioner Hersey has made another and most important distinction. “The direct product of a sound recording, when it is put in a record player, is the sound of music-the writing of the author in its audible form.”126 The point is that the operation of the sound recording produces a musical work which itself is copyrightable. That is sufficient to render the sound recording itself copyrightable quite apart from the separate copyright in the musical work. This principle is directly analogical to the distinction suggested above with respect to computer programs.

Next section: Dissent of Commissioner Hersey

125 See this chapter under Dissent of Commissioner Hersey.

126 See this chapter under Issue of Communication.