64 Pages Posted: 25 May 2000 Last revised: 3 Oct 2015
Date Written: 2000
Recent court cases regarding the regulation of computer software have held that such code may be protected expression under the First Amendment. Some courts have drawn on the law of copyright to conclude that because copyright protects expression, and software is copyrightable, that software must contain protected expression. But because of the recent expansion of patent doctrine to encompass software and other digital communications, it appears that such "speech" will also be patentable. Patent law is even more poorly equipped than copyright to distinguish function from expression. The paper reviews the likely problems inherent in applying patent law to expressive subject matter, and suggests the doctrinal changes that may be required to accommodate First Amendment interests in patentable speech.
Keywords: software, patents, First Amendment, speech, expression, communication, fair use, copyright, encryption
JEL Classification: K1, K3, O31, O32, O33, O34, L86
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