Notes and Questions on the Copyright Statute
1. Copyright is a complex and highly conceptual field of law. Fortunately,
all of its basic principles are explicit or implicit in the copyright
statute itself. Indeed, the current statute as originally enacted—the
Copyright Act of 1976 or "1976 Act"—is undoubtedly the best drafted federal
statute in the field of intellectual property. (Not so for many
recent amendments!) The statute's quality is not surprising, for
the Copyright Office and Congress spent over twenty years preparing the
text of the 1976 Act. Rapid changes in technology and the marketplace,
the greater importance of intellectual property generally, and changes
in the nature of congressional deliberations make such leisurely and thoughtful
consideration unlikely in the future.
For the copyright novice, the most important provisions of the 1976 Act
are the definitions in Section 101, the statement of the scope of copyright
protection in Section 102, and the list of the copyright owner's exclusive
rights in Section 106. The definitions section is hard to grasp
in the abstract, but skim it quickly to see what kinds of definitions
it contains. Then read Sections 102 and 106 twice each, once for
sense and a second time to identify key words, phrases and concepts.
2. Section 102(a) has two parts, a first sentence containing general
criteria for copyright protection, followed by a list of categories of
copyrighted works. The word "include" in the preamble makes clear
that the list is nonexclusive, nonexhaustive and illustrative only.
Therefore the "meat" of Section 102(a) is in the first sentence, which
lays out the two basic requirements for copyright protection. What
When and how does copyright protection arise? Can you answer this
question from the first sentence of Section 102(a) and the definition
of "created" in Section 101?
3. Subsection (b) of Section 102 is just as important as subsection
(a). Section 102(b) codifies a judge-made exclusion from copyright
protection for ideas, processes, methods, etc. The exclusion derives
from a long series of decisions beginning with the seminal case of Baker
v. Selden, 101 U.S. 99, 25 L.Ed. 841 (1880). The exclusion goes
by the general name of "idea/expression dichotomy," under which copyright
does not protect abstract ideas or facts, but only the form in which they
The Baker Court explained the rationale for this dichotomy as follows:
"A treatise on the composition and use of medicines, be they old or new;
on the construction and use of ploughs, or watches, or churns; or on the
mixture and application of colors for painting or dyeing; or on the mode
of drawing lines to produce the effect of perspective,—would be the subject
of copyright; but no one would contend that the copyright of the treatise
would give the exclusive right to the art or manufacture described therein.
The copyright of the book, if not pirated from other works, would
be valid without regard to the novelty, or want of novelty, of its subject-matter.
The novelty of the art or thing described or explained has nothing to
do with the validity of the copyright. To give to the author of
the book an exclusive property in the art described therein, when no examination
of its novelty has ever been officially made, would be a surprise and
a fraud upon the public. That is the province of letters-patent,
not of copyright. The claim to an invention or discovery of an art
or manufacture must be subjected to the examination of the Patent Office
before an exclusive right therein can be obtained; and it can only be
secured by a patent from the government.
"The difference between the two things, letters-patent and copyright,
may be illustrated by reference to the subjects just enumerated. Take
the case of medicines. Certain mixtures are found to be of great
value in the healing art. If the discoverer writes and publishes
a book on the subject (as regular physicians generally do), he gains no
exclusive right to the manufacture and sale of the medicine; he gives
that to the [*103] public. If he desires to acquire such
exclusive right, he must obtain a patent for the mixture as a new art,
manufacture, or composition of matter. He may copyright his book,
if he pleases; but that only secures to him the exclusive right of printing
and publishing his book. So of all other inventions or discoveries."
101 U.S. at 102-103.
What is the policy rationale behind this distinction between patents and
copyrights? Would a copyright on a book provide a "cheap patent"
if it protected the ideas discussed in the book as well as the expression?
Why? (This same principle applies to ideas, methods and processes
embodied in computer programs. See Computer Associates International,
Inc. v. Altai, Inc., 982 F.2d 693, 703-712, 23 U.S.P.Q.2d (BNA) 1241
(2d Cir. 1992) (reviewing precedent, applying dichotomy to computer-program
cases, and proposing abstraction-filtration-comparison test for applying
The law is equally clear that the idea/expression dichotomy applies to
unpatentable ideas, such as historical facts, speculations and
arguments, as well as patentable inventions. See, e.g., Miller
v. Universal City Studios, Inc., 650 F.2d 1365, 1367-1368, 1372 (5th
Cir. 1981) (reporter's research on story of notorious kidnapping); Hoehling
v. Universal City Studios, Inc., 618 F.2d 972, 978-79 (2d Cir. 1980)
(facts and speculation regarding circumstances of destruction of "Hindenburg"
dirigible). See also, Feist Publications, Inc. v. Rural Telephone
Service Co., 499 U.S. 340, 344-345, 111 S.Ct. 1282, 1287, 113 L.Ed.2d
358 (1991) ("That there can be no valid copyright in facts is universally
understood. The most fundamental axiom of copyright law is that
[*345] ‘no author may copyright his ideas or the facts he narrates'"),
quoting Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U.S. 539, 556, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).
What is the policy rationale for this rule? What fundamental principle
of our free society might be adversely affected if authors could control
the publication by others of facts and ideas by writing books embodying
them and copyrighting the books?
4. Although facts themselves may not be copyrighted, original collections
of facts (or other materials, whether copyrighted or in the public domain)
may be copyrighted as "compilations." Most databases are "compilations."
As the Supreme Court said in Feist : "This case concerns the interaction
of two well-established propositions. The first is that facts are
not copyrightable; the other, that compilations of facts generally are.
Each of these propositions possesses an impeccable pedigree." 499
U.S. at 344.
Take a look at the definition of "compilation" in Section 101 and the
rules for compilations and derivative works in Section 103. What
aspects of a compilation does copyright protect, if not the individual
facts in it? What standard do those aspects have to meet? What
words in the statute suggest the answers?
5. Read again the first sentence of Section 102(a), together with
the definitions of "copies," "fixed," and "phonorecords" in Section 101.
Do all these provisions have something in common? Are they
designed to make copyright protection depend upon the technology or medium
used to record creative works, or are they designed to make it independent
of technology and medium? What words in each provision answer this
question? Why did Congress draft the statute this way?
6. In the previous copyright statute, the Copyright Act of 1909,
Congress had used the phrase "all the writings of an author," rather than
the current language "original works of authorship" now in Section 102(a).
See Pub. L. No. 60-349, § 4, 35 Stat. 1075, 1076 (1909), codified
at 17 U.S.C. § 4 (1970) ("The works for which copyright may be secured
under this title include all the writings of an author."). Congress
intended the change in language to create a potential gap between the
range of works covered by the Constitution, namely "Writings" of "Authors,"
and the scope of statutory copyright protection. As the House Report
explained, Congress wanted to avoid giving courts "the alternative of
holding copyrightable something that Congress clearly did not intend to
protect, or of holding constitutionally incapable of copyright something
that Congress might one day want to protect." H.R. Rep. No. 1476,
94th Cong., 2d Sess. 51 (Sept. 3, 1976), reprinted in 1976 U.S. Code Cong.
& Admin. News 5659, 5664. Can you think of any kind of work that
might fall into this "gap?" Should the answer depend upon the nature
of the work or the technology used to record it?
7. What do the definitions of "copies" and "phonorecords" have in
common? Are they similar in substance? How do they differ?
This book and many on copyright often use the words "copy" or "copies"
imprecisely and in a general sense to refer both to copies and phonorecords.
The alternative would be cumbersome: referring repeatedly to "copies
and phonorecords" and using seven syllables when two would do. The
statutory regime for phonorecords and sound recordings
differs from that for copies in certain respects, particularly with regard
to exclusive rights, exceptions to those rights, and
remedies. The basic requirements for copyright protection, however,
are the same for both copies and phonorecords.
8. Read again the statutory definition of "fixed" and the first
sentence of Section 102(a). Now consider an ordinary paper book.
Suppose a machine-readable file contains the text of the book as
a "text file,"(1) which appears on the screen as
the text of the book but is stored in the computer as a binary file
using so-called "ASCII code."(2) Whenever the
file is accessed by the computer user, the machine's software or operating
system converts the binary file, consisting entirely of large blocks of
ones and zeroes, into readable text on the screen. Is the binary
file still a book? Is it protected by copyright
to the same extent as the book in paper form? What words in the
definition and the first sentence of Section 102(a) provide an answer?
Is the answer clear?
9. Computer systems have two general types of storage subsystems.(3)
First, there are so-called "permanent" or long-term storage devices,
such as floppy disks, hard disks, tapes, CD-ROMS (compact disk read-only
memories), DVDs (digital versatile disks), and writeable versions of the
last two. All of these are designed to retain storage when power
is lost or the computer is shut down. Second, there is temporary
memory, including computers' working memory, often called "random-access
memory" or "RAM,"(4) which is "volatile" in the sense
that its contents are lost when power is lost or the computer is shut
Consider again the book in Note 8, supra. Are the images
of its pages on the display screen "fixed"? Is the ASCII text file
"fixed" while in RAM?
It is now well established that data in RAM is "fixed" and constitutes
a "copy" or "phonorecord." See, e.g., Triad Systems Corp. v.
Southeastern Express Co., 64 F.3d 1330, 1333, 1335, 36 U.S.P.Q.2d
(BNA) 1028 (9th Cir. 1995), cert. denied 516 U.S. 1145 (1996) (citing
MAI Systems, infra); NLFC, Inc. v. Devcom Mid-America,
45 F.3d 231, 234, 33 U.S.P.Q.2d (BNA) 1629 (7th Cir. 1995) (point not
disputed); MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511,
519 (9th Cir. 1993), cert. dismissed 510 U.S. 1033 (1994) (seminal
case). Looking at the definition of "fixed" and focusing on its
key words, can you articulate a rationale for this result? Does
the same rationale apply to the display-screen image?
10. Now take a closer look at Section 106. It lists the "bundle
of rights" that inhere in every copyright. Notice how Section 501(a)
refers to Section 106 (as well as the numerous statutory exceptions) to
Is Section 106 generally exhaustive, or are there other rights not listed
in Section 106. Compare the introductory language of Section 106
to that of Section 102(a) and Section 107. Does the comparison suggest
an answer? (Section 602 does provide certain additional rights against
infringing imports, but those rights are explicit. The question
here is whether any rights should be deemed implicit in the statute,
other than those listed in Section 106.)
Suppose someone gives you a pirated (unlawful) copy of a book? Is
your mere possession of that unlawful copy, without more, actionable under
Section 106? Is your mere receipt of the copy actionable
without more? Do the answers depend upon your state of mind, i.e.,
whether you know the copy was pirated? Should they? If you
are not liable for direct or primary infringement, might you be liable
for inducing, assisting, or contributing to infringement by the person
who made the pirated copy? under what circumstances?
11. As the edited version of the statute suggests, copyright law
is relatively simple in general concept, but it is often devilishly hard
to apply. Most, if not all, of the statute's textual and conceptual
difficulty lies in the numerous exceptions in Sections 107 through 122—all
of which (except for "fair use" under Section 107) are omitted from the
edited version in these materials.
Section 107 is perhaps the most general exception. Another general
exception is the so-called "first sale" doctrine under Section 109. That
exception allows the owner of an authorized copy to resell it, lend it
(except for computer programs), or otherwise dispose of that single copy,
or to display it publicly (for example, in a gallery) without transmitting
its images to other locations.
Beyond these, the various exceptions are complex, detailed and specific.
Indeed, many are specific to particular industries, such as the
music industry or the satellite/cable industry. Those that deal
with such modern technologies are models of prolixity and obscurity. Even
an introductory survey course in copyright does not normally cover them
in any systematic or comprehensive way. They best way to deal with
them as a student is to look over their titles and be aware of their existence
general subject matter, so that you can consult them as relevant problems
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12. As mentioned earlier in out unit on software and the First Amendment,
the computer software amendments of 1980 made clear that copyright protects
computer programs. The actual statutory changes wrought by those
amendments, however, were minimal. The 1980 amendments changed only
two things: (1) they added the definition of "computer programs" (which
appears out of alphabetical order at the end of Section 101) and (2) they
amended Section 117. (Before the 1980 amendments, Section 117 was
simply a "standstill" provision, saying that copyright law as applied
to computer programs just as it would have before the 1976 Act became
law—whatever that may have meant. Immediately after the 1980 amendments,
Section 117 contained what is now Section 117(a) and (b) is slightly different
What is now Section 117(a) and (b) were part of the 1980 enactment. Sections
117(c) and (d) were added by amendment in 1998. See 17 U.S.C. §
117(c), (d), as added by Title III, "Computer Maintenance Competition
Assurance Act," of Digital Millennium Copyright Act, Pub. L. No. 105-304,
§ 302(3), 112 Stat. 2860, 2887 (Oct. 28, 1998).
The purposes of subsections (a) and (b) are self-evident. Section
(a) allows owners of (legitimate) copies of computer programs to make
backup and archival copies and to make, modify and adapt copies for use
in machines. Subsection (b) allows owners of hardware on which software
is legitimately stored to transfer or dispose of the hardware along with
the backup and archival copies (including any stored inside the machine,
for example, on a hard disk) but not to transfer adaptations. Even
these provisions, however, are not without difficulty. Compare
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 260, 266 (5th
Cir. 1988) (interpreting Section 117(a)(1) as allowing making of archival
copies "for any reason so long as the owner uses the copy for archival
purposes only and not for an unauthorized transfer") (footnote omitted),
with Micro-Sparc, Inc. v. Amtype Corp., 592 F. Supp. 33,
35 (D.Mass.1984) (owner could make archival copies only to protect against
mechanical or electrical failure, to which paper copies of source code
were not subject), and Atari, Inc. v. JS & A Group, Inc.,
597 F. Supp. 5, 9-10 (N.D.Ill.1983) (to similar effect).
The purpose of subsections (c) and (d) is a bit more obscure. They
derive from the case of MAI Systems Corp. v. Peak Computer, Inc.,
991 F.2d 511, 518 (9th Cir. 1993), cert. dismissed 510 U.S. 1033
(1994). There a third-party servicer, at the request of the owner
of a computer and licensee of its operating system, turned on the computer
in order to service it, causing a copy of the operating system to be made
automatically in RAM during the "boot up" process. The Ninth Circuit
held this was copyright infringement because the servicer, unlike the
computer owner, had not been licensed to use the operating system. Congress
adopted subsections (c) and (d) in order to overturn this result without
affecting the more general principle that copies in RAM are "fixed" and
therefore are "copies" within the meaning of the 1976 Act.
1. Such a file has many different but loosely
equivalent names. These include: "text file," "ASCII file," and
"DOS text file."
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2. ASCII code is a conventional, standardized
numerical code used to store written characters in computers, including
letters, numbers and punctuation. "ASCII" is an:
"[a]cronym for the American Standard Code for Information Interchange.
Pronounced ask-ee, [it] is a code for representing English characters
as numbers, with each letter assigned a number from 0 to 127. For
example, the ASCII code for uppercase M is 77. Most computers use
ASCII codes to represent text, which makes it possible to transfer data
from one computer to another.
"Text files stored in ASCII format are sometimes called ASCII files."
http://webopedia.internet.com/TERM/A/ASCII.html (emphasis omitted).
(Although this definition uses the decimal numbers "127" and "77," ASCII
code in normally stored as binary code or (in a more condensed format) as
octal or hexadecimal numbers, i.e., numbers to the base eight or sixteen,
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3. In the early days of the computer era,
input and output devices such as printers and magnetic storage units (disks
or tapes) were called "peripheral devices" or "peripherals." The
reason was that they were usually made, sold and installed separately
from the computer itself (including the "CPU," or central processing
unit, and main memory). Often so-called "peripheral" devices
were made by different manufacturers than those that made the CPU and
main memory. Indeed, early computers did not even have some of the
"peripherals" that we take for granted today, such as displays and keyboards.
Instead, an early computer might have had two rows of lights for
immediate output, displaying in binary form (off for "zero" and on for
"one") the machine-language instruction currently in the machine's instruction
register and the last instruction executed. A similar row of switches
was often used to place instructions manually into the computer's central
processing unit in binary form, for example, to begin the "boot up" process.
Today the term "peripheral devices" is inappropriate for two reasons.
First, many if not all of these devices can be and often are packaged,
installed, and sold as part of the computer and by the same manufacturer.
Second, even when they are added latter and/or bought from a different
manufacturer, both the manufacturer and consumer usually have a choice:
to install the device "internally" as a circuit board or "externally"
in a separate box with cables connecting to the computer. Under
these circumstances it makes no sense to describe these devices as "peripheral,"
and the term has fallen into disuse.
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4. The term "random" here is not used in
the lay sense of "arbitrary" or "uncontrolled." Rather, it is used
to distinguish "random-access" storage from a different type of storage
using "sequential access" methods.
Magnetic tape, for example, is said to have "sequential access" because
a person wanting to read something in the middle of the tape must play
or spool the tape sequentially until she comes to the part with the desired
data. In contrast, a computer's main memory (usually embodied in
semiconductor chips) allows every memory cell or location to be accessed
separately and in any order. Thus, the access is "random" in the
sense that one can access any stored datum "at random" without spooling
or paging through unwanted data.
Disk-based magnetic storage units (both floppy and hard) have a little
bit of both random and sequential access. Physical subunits of the
disks called "sectors" contain the data. The computer can address
each sector separately, just like a cell of main memory. Yet within each
sector the data are stored sequentially, and the computer can read or
write to the sector only as a whole. This is the reason why very
short files consisting of only a few characters or bytes often appear
longer when stored on disk. An entire sector—usually consisting
of a round number of bytes in binary terms, such as 512 or 1024—must be
used to store even the shortest file. Unused portions of the sector
are simply "wasted" insofar as availability for further storage is concerned.
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