Method and Madness in Copyright Law

32 Pages Posted: 12 Jul 2007 Last revised: 6 Oct 2015

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law


Black letter copyright law holds that methods and processes, as well as facts and ideas, are excluded from the subject matter of copyright. This doctrine extends back at least to the iconic Supreme Court decision in Baker v. Selden. But recent copyright cases have protected as copyrightable subject matter compilations of numerical values that are the products of calculation processes, such that protection of the final results seems tantamount to protection of the underlying process. These cases not only tread the line between fact and original expression, but underscore the difficulty of separating process from product in copyright. A careful examination of these decisions uncovers powerful but questionable philosophical assumptions embedded in copyright jurisprudence, and reveals hidden lacunae within the copyright statute that call into question the continuity and viability of current copyright doctrine.

Keywords: copyright, determinism, fact, expression, intellectual property, software, processes

JEL Classification: O31, O33, O34, L86, K30, K40

Suggested Citation

Burk, Dan L., Method and Madness in Copyright Law. Minnesota Legal Studies Research Paper No. 07-34, Available at SSRN: or

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
United States
949-824-9325 (Phone)

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