Re: Re: Using Fonts in Banner Project

On Fri, 19 Aug 2005, John T. Mitchell wrote:

> When a computer program does nothing more than draw a non-copyrightable
> typeface, is such program itself copyrightable, given Section 102(b)?

I would say, sure. If a computer program produced no displayed output at all, it would still be copyrightable.

If you had a computer program that, for example, did extensive stochastic modeling in order to come up with the optimum scheduling of signal changes for a stoplight at a busy intersection, that would still be subject to copyright, even if the only output is the uncopyrighted signal changes.

True, the algorithm itself is a 102(b)-uncopyrighted idea, system, etc; but the software code itself is 102(a) work of authorship.

Mind you, I think this breaks down when you get to object code. A human-readable computer program (i.e., in source code form) contains authorship that can be communicated, either directly or with the aid of a machine or device. By my personal heresy is that I believe that object code really is 102(b) stuff. It's merely functional, and for the most part, the authorship that was in the work in source form cannot be communicated to a viewer.

(I acknowledge that some computer programs include some elements, graphic or textual, that can be communicated from the program itself; I would recognize copyright in those works to the extent of the copyrightable output they communicate.)

I think object code should not be protected by copyright. Protection of object code is based on a legal fiction that the object form is the same work as the source code, just cast into a different form, but I think that's ludicrous.

If my recollection is accurate, CONTU had some interesting secondary opinions from a couple of the commissioners. First, Commisioner Nimmer suggested that Congress might want to extend copyright protection to computer programs, but only to the extent that they produced copyrightable output. I thought that was an odd idea when I first read it, but when you limit that restriction to object code copies of computer programs, I think it makes perfect sense. Mind you, I would continue to extend copyright protection to computer programs in source code form, to the extent they are original, regardless of the fact that they're computer programs.

The other interesting CONTU opinion was Commissioner Hershey's dissent. He opined that a computer program (presumably in object code form) was just a machine part, like a very fancy equivalent of a cam that might direct the positioning of a machine. He would have denied copyright protection to computer programs.

Mind you, I believe that computer programs in object code form should have some protection; but I think copyright is the wrong vehicle. I'd have preferred to see a sui generic protection scheme, with a much shorter term; maybe formality-free for some period of years, and extended further upon registration; something like the Semiconductor Chip Protection Act does.

But, the opportunity for that has long past. For better or worse well, for worse, we protect object code with copyright now. Received on Mon Aug 22 2005 - 21:00:00 GMT