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Copyright (c) 1986 The University of Pittsburgh Law Review
University of Pittsburgh Law Review

SYMPOSIUM: THE FUTURE OF SOFTWARE PROTECTION: INFRINGEMENT OF COPYRIGHT IN COMPUTER PROGRAMS. +



+ Copyright 1986, Paul Goldstein.

SUMMER, 1986

47 U. Pitt. L. Rev. 1119

Author

Paul Goldstein *

Excerpt

On 31 July 1978, the National Commission on New Technological Uses of Copyrighted Works issued its final report recommending that the Copyright Act be amended "to make it explicit that computer programs, to the extent that they embody an author's original creation, are proper subject matter of copyright." 1 The Commission's Report enjoyed considerable influence. Congress relied on the Report in enacting the 1980 software amendments to the United States Copyright Act. 2 Courts relied on the Report, too, most notably the Court of Appeals for the Third Circuit in its landmark decision, Apple Computer, Inc. v. Franklin Computer Corp., 3 upholding the copyrightability of computer programs across the board.

But CONTU's recommendations also had their detractors, both inside and outside the Commission. Commissioner John Hersey argued against protection in an eloquent and profound dissenting opinion. 4 "[A]dmitting these devices to copyright," Hersey wrote, "would mark the first time copyright had ever covered a means of communication, not with the human mind and senses, but with machines." 5 Professor Pamela Samuelson lambasted the recommendations in a trenchant and provocative essay. 6

I share many of the misgivings expressed by CONTU's critics. Copyright, with its low standards, long term and thin layer of protection, is far from an appropriate vehicle for attracting optimal research and development investment to functional subject matter like computer software. Patent law, with its much higher standards and level of protection may be more appropriate, but is also far from perfect. In that never-never ...
 
 
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