Method and Madness in Copyright Law

Abstract

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