Intellectual Property Law: Case I :

By:

Ceyhun Gurkan (NYU Law School – INT Law 09)

Andrew Mason (NYU Law School – TORT 09)
Julia Tomars (Harvard Law School – Criminal Law 08)
Stephanie Dawson (Yale Law School – Jurisdiction 08)
Kaze Dillon (Columbia Law School – Contract Law 07)

Submitted to the Department of TORT for the

degree of Law at the New York University Law
School.

October 27, 2009.

The authors hereby grants to MIT permission to

reproduce and to distribute publicly paper and
electronic copies of this thesis document in whole or
in part in any medium now known or hereafter
created.
 Introduction:

The struggle to adapt existing intellectual property law to

contemporary computer technology presents one of the greatest
legal challenges created by the ongoing technological revolution.
Many have questioned whether the current foundation of
intellectual property law can be adapted to control the excesses of
this technological revolution while many others argue that the
existing legal framework can successfully accommodate the
changes. Due to this new technology, legislation has been
introduced to amend several sections of United States Code Title
17. [FN1] This new legislation seeks to amend the existing law to
provide additional protection for the producers of intellectual
property to encourage them to contribute more of their protected
works and ideas into the National Information Infrastructure (NII).
This paper will attempt to determine whether these proposed
changes could have a significant and detrimental effect upon the
rights of the consumers of intellectual property.

The number of personal computers currently in use in

America has grown exponentially over the last several years and
the trend is predicted to continue unabated. [FN2] Additionally,
current estimates of Internet usage vary between 16.4 to 22 million
adult American users. [FN3] The sheer number of computer users,
combined with the exponential rate of growth of persons with
access to computer technology has many persons concerned about
the impact of this technology on their current and future rights
under existing intellectual property law. Accordingly, in February
of 1993, President Clinton created the Information Infrastructure
Task Force (IITF) to assist in the formation and execution of the
Clinton Administration's "vision for the National Information
Infrastructure." [FN4] Recently, legislation has been introduced in
both the Senate and House of Representatives [FN5] to codify the
changes to copyright law suggested by the IIFT in their White
Paper. [FN6] The purpose of amending any law is to change the
rights and duties of the parties involved, and it should not be
performed without hesitation. Furthermore, the resulting judicial
implementation of the law does not always directly coincide with
the voiced opinions of the drafters and supporters of the
legislation. Therefore, the actual text of the legislation should be
scrutinized as well the arguments of the supporters and opponents.

Current State of the Law:

It would be worthless to attempt to predict changes in the law
without first discussing the current state of the law. Unfortunately,
the entire field of intellectual property law can oftentimes seem
confusing and intimidating to even the most seasoned thinkers.
Unlike many areas of law, the field of intellectual property law is
often so technical that many of the common sense, knee-jerk
reactions that guide our thinking process are noticeably absent.
Therefore, not many lawyers seek to venture into the highly
specialized realm of intellectual property law. With this in mind,
this essay is written for those whose legal education may not have
included a significant amount of intellectual property law.

The Written Law:

For the uninitiated, the fundamental purpose of intellectual
property law is to provide a reasonably limited time and scope for
a person to have a monopoly for exploiting her original ideas or
works. At first glance, the Federal government providing a person
with a limited monopoly over their ideas and works seems contrary
to the principles of a free market economy. However, the U.S.
Constitution specifically enables Congress "[t]o promote the
Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries." [FN7] This ability to control the
exploitation of one's own ideas and works is meant to provide the
impetus for the creation of new intellectual property. Following the
written intent of the framers, the United States Supreme Court has
held that "[c]reative work is to be encouraged and rewarded, but
private motivation must ultimately serve the cause of promoting
broad public availability of literature, music, and the other arts,"
[FN8] and also that "copyright law ultimately serves the purpose of
enriching the general public through access to creative works."
[FN9]

On a basic level, any computer program is simply a set of

instructions commanding a computer to accomplish specified
tasks. [FN10] Before the computer revolution, technological
innovations were usually protected through the use of patent law.
[FN11] While both patent and copyright law exist to protect
intellectual property, patents protect creative, functional invention,
and in contrast, copyrights protect creative authorship. [FN12] For
an article to be categorized as functional under the Act, it must
have an "intrinsic utilitarian function that is not merely to portray
the appearance of the article or to convey information." [FN13]
Basically, functionality requires that the invention achieve the
desired result without human facilitation. [FN14] Due to this,
combined with computer software's inherent susceptibility to
copying, copyright has become the protection of choice for
software developers. [FN15] Unfortunately, the decision to employ
copyright as the primary source of protection for computer
software raises issues not present with other forms of artistic work.
 United States intellectual property policy has traditionally
been fairly liberal in the determination of what items are worthy of
copyright protection. The Copyright Act of 1976, for example,
protects "original works of authorship fixed in any tangible
medium of expression." [FN16] Accordingly, it would appear that
the Act requires a work to possess several elements to qualify for
copyright protection. From the text of § 102(a), it is apparent that a
work must first be "fixed in any tangible medium of expression"
before it can qualify for copyright protection. This language of the
Act is extremely broad, defining a tangible medium as any medium
"now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the
aid of a machine or device." [FN17] Note that the Act defines a
medium as tangible even where mechanical aides are required for
humans to perceive the work. This language is so liberal that it is
hard to imagine any available storage medium (except the brain)
that does not qualify as "tangible." Therefore, even though the text
of the Copyright Act was written prior to the discovery of most of
the storage technologies in use today, those technologies are
clearly within the scope of the Act.

The next requirement for copyright protection under the Copyright

Act is that the work must be deemed an "original work of
authorship." Fortunately, the Act also includes a non-exhaustive
list of things that qualify as "works of authorship." The first item
on the list is a category for literary works. [FN18] The drafters of
the Copyright Act clearly intended for computer programs to be
afforded protection as literary works under the Act, as the House
Report for the 1976 Act states that "the term 'literary works' does
not connote any criterion of literary merit or qualitative value: it
includes ... computer data bases, and computer programs to the
extent that they incorporate authorship in the programmer's
expression of original ideas, as distinguished from the ideas
themselves." [FN19]

The Copyright Act also provides that copyright protection

does not "extend to any idea, procedure, process, system, method
of operation, concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated, or embodied in
such work." [FN20] Therefore, the expression of the idea is
protected while the idea (or process, system, etc.) itself is outside
the purview of the copyright statute. Accordingly, this
idea/expression dichotomy greatly limits the scope of what parts of
the work are subject to copyright protection.

However, obtaining a copyright does not give the author an

infinite amount of control over her work. Rather than granting the
author ownership in the entire work, the copyright grants the
owner rights in relation to the work. The 11th Circuit has recently
held that "[i]t is the rights, not the work, that the copyright holder
owns." [FN21] Rather than giving the author dominion over the
work, Section 106 of the Copyright Act gives the owner a "bundle
of rights" including the exclusive rights of reproduction,
adaptation, publication, performance, and display of the work.
[FN22] Further, Section 501 of the Act even provides that
"[a]nyone who violates any of the exclusive rights of the copyright
owner… is an infringer of the copyright or right of the author."
[FN23]

The Copyright Act provides that certain categories of users,

due to their status, may use copyrighted materials in ways that may
violate the owner's rights without violating the copyright. Section
107 contains a nonexclusive list of purposes that qualify as fair
use, including: criticism, news reporting, teaching, scholarship, and
research. [FN24] The statute provides that four factors should be
considered by a court when determining if an act that would
otherwise be a violation qualifies as a fair use. First, a court should
determine the "purpose and character of the use," taking into
account whether the use is commercial or noncommercial. [FN25]
While educational and other noncommercial uses are looked upon
favorably by courts, the fact that a use is commercial should not
preclude it from being a fair use. Next, the court should examine
the "nature of the work" as well as "amount and substantiality of
the portion used." [FN26] This is to take into account the quantity
and significance of the work that was used in relation to the entire
protected work. Finally, the court should determine the effect of
the violation on the value and market for the original work. In the
interest of equity, the weight of each particular element should be
balanced against.

In fact, the text of the original Copyright Act of 1909 [FN27]

did not contain a fair use provision. Fortunately, the statute was
subsequently interpreted to include a provision that operates in a
substantially similar way to the current fair use provision. [FN28]
Therefore, Congress must have intended to secure the right of fair
use when it was included in of the current legislation. Hence,
Congress must have intended to ensure that, under certain
circumstances, fair users may infringe an owners exclusive right
without generating liability due to the resulting benefit to the
public.

Current Judicial Interpretation:

Predictably, conflict arises between the producers and
consumers of intellectual property concerning the scope of
protection as well as what constitutes a fair use. Not surprisingly,
the producers of intellectual property tend to interpret the laws in
ways that afford them the maximum protection and control over
their work. On the other hand, the consumers of intellectual
property strive for access to the greatest amount of available
material as well as the maximum amount of rights under any fair
use. These interests often seem to collide in defining the scope of
fair use and originality.

The originality requirement can present a major impediment

in copyrighting any work. "The sine qua non of copyright is
originality," according to a recent United States Supreme Court
decision. [FN29] That decision was handed down in a civil action
concerning the copyrightability of a compilation of phone
numbers. Feist Publications had copied phone numbers from a
white pages publication of a competitor, Rural Telephone Service.
[FN30] Rural refused to license the data to Fiest, so Feist copied
and processed almost five thousand entries from Rural's
publication. [FN31] Feist's resulting publication contained just
over one thousand three hundred entries that were identical to
those in the Rural directory, including several bogus entries
planted by Rural to assist them in detecting copies. [FN32] The
Feist Court held that a work must be both an "independent creation
of the author" as well as possess a "minimal degree of creativity"
to qualify for copyright protection, and that a mere compilation of
telephone listings did not qualify. [FN33]

Whelan, one of the first cases to deal with the scope of

protection afforded to computer software, greatly expanded the
scope of protection available to computer programs. [FN34] Prior
to Whelan, courts were just beginning to define the parameters of
copyright protection for computer software. Nevertheless, even by
1986 it was clear that both source code and object code could be
protected by copyright. [FN35] Thereafter, the Whelan court
paralleled the protection for non-literal aspects of other literary
works and stated that "the copyrights of computer programs can be
infringed even absent copying of the literal elements of the
program," and also that the idea and function of a compuer
program was the entire program and "everything that is not
necessary to that purpose or function [is] part of the expression of
that idea." [FN36] While several recent cases expressed doubt
concerning its holding, Whelan stands as a testament to the
difficulty of determining the scope of copyright protection for
emerging technology. [FN37]

Both source code and object code are involved in the production of
computer software. Source code is usually written in a symbolic
programming language which can be readily recognized and
understood by others familiar with the specific programming
language. During the production process, source code is compiled
into object code. Object code is a series of ones and zeroes
designed for a computer to understand. [FN38] Further, while
experienced programmers may be able to comprehend small pieces
of object code, it is unreadable to almost all persons. Accordingly,
most software purchased commercially contains only the object
code. Therefore, decompilation is the process of returning the
unreadable object code back to the readable source code. [FN39]

During the recent adaptation of current intellectual property law to

the area of emerging technology, the manufacturers of intellectual
property have suffered several recent defeats in their attempt to
expand control over their product and the impact of emerging
technologies. The first setback occurred in 1984 when the United
States Supreme Court decided the Sony case and held that the
recording of a copyrighted television program for the purposes of
"time shifting" was a fair use. [FN40] The Court stated in Sony that
any "challenge to a noncommercial use of a copyrighted work
requires proof either that the particular use is harmful, or that if it
should become widespread, it would adversely affect the potential
market for the copyrighted work." [FN41] Therefore the copyright
owner has the burden of proving the damage or potential damage
of noncommercial fair use infringers.
 Subsequent courts have further expanded the scope of the fair
use doctrine by ruling that decompilation of computer programs
can be a fair use under certain circumstances. The landmark Sega
case in 1992 held that "[w]here there is good reason for studying or
examining the unprotected aspects of a copyrighted computer
program, disassembly for purposes of such study or examination
constitutes a fair use." [FN42] The Sega case involved the attempt
of a rival computer game manufacturer, Accolade, to reverse
engineer a code necessary for software to operate on the Sega
console. The court performed the four part test required by §107
and determined that even though the admitted purpose was
commercial, the public benefit derived from decompilation
outweighed any possible detriment to Sega, the specific codes
required for interoperability had questionable originality, and
therefore the object code required for software interoperability
with the Sega system was not protected by copyright. [FN43]

The Atari case, decided about the same time as Sega, also
appeared to recognize a right to decompile. [FN44] The Atari court
cites Feist for the proposition that an author may legitimately copy
unoriginal, constituent elements from a prior author's work.
[FN45] Following that logic, the Atari court states that reverse
engineering the object code to get at unprotectable ideas contained
within the code constitutes a fair use. [FN46] Unfortunately for
Atari, they had previously lied to the Copyright Office in order to
obtain the program that they subsequently decompiled. Due to the
fact that Atari had not obtained the object through legal means, the
court found itself unable to fashion any sort of equitable relief, and
further held that Atari's "unclean hands" prevents them from
presenting a defense of copyright misuse. [FN47]

In March of 1996, the Eleventh Circuit of the U. S. Court of

Appeals decided Bateman v. Mnemonics, and explicitly endorsed
the Sega court's view on reverse engineering as fair use. [FN48]
The Bateman case involved one company's reverse engineering of
a competitor's design for a computer operating system used in
automated parking systems, and using the resulting knowledge in
the design of a competing system. [FN49] Using an analysis based
on the Feist and CAI opinions, the court found that the lower court
had committed reversible error based upon the omission of
instructions on the ramifications of copying "dictated by
compatibility requirements" as well as for instructing the jury to
filter out only nonliteral similarities in the "substantial similarity
test." [FN50]

Under the current judicial interpretation of the applicable

statutes, unless access is otherwise available, the decompilation of
copyright protected computer software and hardware for the
purpose of revealing and understanding unprotected elements in
the source code is established as a matter of law. [FN51]
Therefore, it is imperative to determine what portions of the work
is unprotected by copyright. Whelan was the first major attempt to
expand the copyright protection available to computer programs
beyond the literal object and source code. Contemporary courts
continue to agree with Whelan that protection extends beyond the
literal code, but the scope of protection afforded by Whelan has
been widely criticized. [FN52] The recent Bateman decision does
not even mention Whelan.

Recent courts have completely replaced the expansive

Whelan test for copying nonliteral program elements with the
"abstraction-filtration-comparison" test used in CAI. [FN53] Under
the CAI test, a program's nonliteral structure is first broken down
into its constituent parts, then the unprotectable elements are
filtered out, leaving only the protected elements for comparison
with the allegedly infringing program. [FN54] The CAI decision
defines three categories of program elements that are unprotected.
First, the CAI court invokes merger doctrine to eliminate "elements
dictated by efficiency." Merger doctrine states that "[w]hen there is
essentially only one way to express an idea, the idea and its
expression are inseparable and copyright is no bar to copying that
expression." [FN55] The CAI court also cites the National
Commission on New Technological Uses of Copyrighted Works
Report for the proposition "that when specific instructions, even
though previously copyrighted, are the only and essential means of
accomplishing a given task, their later use by another will not
amount to infringement." [FN56] Second, the CAI court filters out
"elements dictated by external factors", which is meant to include
elements necessary only for compatibility with specific machines
or programs, design standards or widely accepted programming
practices. [FN57] Finally, any elements that are in the public
domain are filtered out from comparison to deny protection to for
elements that are "if not standard, then commonplace in the
computer software industry." [FN58] Not surprisingly, the CAI test
filters out considerably more nonliteral elements than the previous
Whelan test.

In the area of copyright, the current legal trend has been to

expand the scope of public access to protected and nonprotected
materials. The recent Bateman decision should have quieted any
nagging doubts concerning the decompilation of software. Also,
the swing away from the Whalen test for copying nonliteral
elements has permitted fledgling authors to provide much greater
interoperability with existing software. Further, anyone who claims
that current intellectual property law is inhibiting expression
should examine the cornucopia of available software and online
material.

Hoaxification:
 From the perspective of the purveyors of intellectual
property, there is nothing worthy or honorable about
decompilation. Persons selling any intellectual property have
already invested their time and money in the development of their
software. The authors of the program receive no direct benefit
from another person subsequently disassembling the existing work
for their own purposes. Unless the producer eventually hires the
decompiler, any knowledge gained by the disassembly of the
program will not be used for the benefit of the producer. Therefore,
the producers of copyrighted intellectual property have a vested
interest in maintaining the maximum amount of control over their
works. Unfortunately, intellectual property is protected for the
purpose of making more material accessible to the public, not for
the benefit of its producers.

Clearly, the producers of computer software have been

alarmed by the recent slant of courts towards recognizing
decompilation as fair use. Correspondingly, Clinton's creation of
the IIFT provided them with an opportunity to modify the existing
law to meet their new concerns. As a result, both bills now being
debated in Congress contain provisions that have the potential to
outlaw the decompilation of software as well as other fair uses.
Both the Senate and House bills propose adding a Chapter to the
Copyright Act entitled "Copyright Protection and Management
Systems" that will enable software manufacturers to control the
decompilation of their products. [FN59]

Section 1201 of the proposed legislation provides that:

No person shall import, manufacture or distribute any device, product, or
component incorporated into a device or product, or offer or perform any service,
the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or
otherwise circumvent, without the authority of the copyright owner or the law, any
process, treatment, mechanism or system which prevents or inhibits the violation
of any of the exclusive rights of the copyright owner under section 106. [FN60]
First, the statute is designed to proscribe devices whose "primary
purpose or effect" is to thwart copy protection schemes.
Unfortunately, there is currently no universally accepted method
for the copy protection of software. Under the Act, any number of
copy protection schemes could be implemented using an almost
infinite number of different methods. As increasing numbers of
different copy protection schemes are utilized, it becomes harder to
identify which products could be interpreted as having a "primary
purpose or effect" of circumventing any copy protection scheme.
[FN61] Rather, the appropriate test for copyright infringement
should be the standard established in Sony, requiring that the
legitimate uses for a device must also be examined. [FN62]

Further, the statute enables producers to implement any copy

protection scheme designed to protect any of the owner's exclusive
rights. Under this construction, a copy protection scheme may be
used to shield not just the protected speech but also the unprotected
elements also contained within the program. There is absolutely no
language anywhere in the legislation that requires that copy
protection schemes be designed in such a way as to afford access
to the unprotected elements. Instead, it would be far more
advantageous to simply copy protect the entire work and thereby
shield the otherwise uncopyrightable elements. [FN63] It may even
be possible control entirely non-copyrightable materials by the use
of copy protection.

The legislation further eliminates any need to conduct §107's

four part test because fair use is simply not an available defense
under the statute. Therefore, recent decisions enhancing individual
rights under the fair use doctrine, like Sega and Bateman, will no
longer be applicable. Even at first glance, it is clear that the statute
makes no mention of fair use, or any reference to §107. According
to the text of the bill, there is absolutely no difference between the
circumvention of a protection scheme for an entirely legitimate use
and circumvention for the purpose of unlawfully violating the
copyright. Thus, it wrongfully assumes a sinister motive for
anyone who would venture to bypass a copy protection scheme.

While §1201 provides for copy protection schemes, the

following section provides for additional protection in the form of
copyright management systems. According to section (c),
copyright management systems contain information on the identity
of the author, copyright holder, conditions of use, as well as other
information. Additionally, this section is plagued by many of the
same shortcomings found in the previous section. As before, the
potential for a myriad of management systems presents the
possibility for uncertainty as to exactly what constitutes a
violation. Section 1202 also contains no language that would
prohibit the placement of copyright management data on works or
elements of works that are non-copyrightable. Further, no specific
accommodation is made for those who would be forced to remove
or alter the management data during the course of fair use. It is also
important to note that, unlike the previous section, violation §1202
may subject a person to criminal as well as civil liability.

The legislation proposed by the supporters of the IITF White

Paper is clearly an attempt by the manufacturers of intellectual
property to circumvent existing case law in their attempt to assert
unwarranted control over their works. The proponents of the
legislation claim that their modifications are simply "a clarification
to ensure that copyright owners are provided with incentives to
create works for the NII." [FN64] Rather than a clarification, what
the White Paper proposes is the wholesale elimination of the CAI
"abstraction-filtration-comparison" test. Courts will no longer have
to decide what elements of the specific computer software are
protectable, whether the use qualifies as fair use, or whether a
copyright violation has even taken place at all. Instead, civil and
criminal remedies will be available to the copyright owner for any
tampering with a copyright protection or management system.
Further, copyright owners will be free to utilize any copy
protection scheme regardless of the effect on the accessibility of
unprotected elements within the work.

Not surprisingly, the Software Publishers Associationhas

heralded the White Paper as a "milestone" shortly after its
publication. [FN65] The S.P.A. would like nothing more than swift
ratification and implementation of the changes to copyright law.
Tragically, the supporters of the legislation fail to recognize that
"[t]he primary objective of copyright is not to reward the labor of
authors, but '[t]o promote the Progress of Science and useful Arts.'"
[FN66] The proponents of the White Paper fail to even address the
issue correctly when they claim that "for centuries… Congress and
the courts protected authors and artists from those who would
otherwise hijack their works," then subsequently fail to assert any
reasons why current copyright law is suddenly unable to cope with
new technology. [FN67]

Conclusion:
Adapting intellectual property law to meet the demands of
today's computer technology presents many challenges to
traditional copyright law. Over time, copyright has become the
protection of choice for the manufacturers of computer software.
Computer programs present several issues not present with
other copyrightable materials. Fortunately, courts have been able to
conform existing intellectual property law to the needs of today's
technology. In response to recent decisions expanding the scope of
fair use concerning computer code, purveyors of intellectual
property are attempting to modify the existing statutory law to
eliminate many of their concerns. However, this recent legislation
is seriously flawed in several major ways. First, manufacturers are
allowed unlimited discretion in deciding the scope of what is to be
protected by their copyright protection and management systems.
Second, once computer code is protected by either system, no
inquiry is necessary as to the copyrightability of the work. Third,
the proposed copyright protection and management provisions
make no accommodation for fair use, and can theoretically be used
to entirely eliminate fair use. Therefore, any Congressperson
interested with the preservation of individual rights should vote
against the pending legislation in the House and Senate.
 Footnotes

[FN1] S. 1284, H.R. Res. 2441, 104th Cong., 1st Sess. (1995).

[FN2] see Carlton, Jim. U.S. PC Shipments Grew 14% to 15% in

Quarter, Despite a Projected Slump, Wall Street Journal, April 29,
1996, at A3; also M. Mitchell Waldrop, Culture Shock on the
Networks, 265 SCIENCE 879, 880 (1994).

[FN3] Lewis, Peter H. New Estimates in Old Debate on Internet

Use, New York Times, April 17, 1996, at C1.

[FN4] Information Infrastructure Task Force, Working Group on

Intellectual Property Rights Intellectual Property and the National
Information Infrastructure (1995). Available online via
http://www.uspto.gov/web/ipnii/ as either an ASCII text file, or a
MS Word file, or a PDF file, or a zipped postscript file (hereinafter
"White Paper").

[FN5] S. 1284, H.R. Res. 2441, 104th Cong., 1st Sess. (1995).

[FN6] Senator Orrin G. Hatch (sponsor of S.1284), Copyright and

The Digital, Global Marketplace, Roll Call , March 11, 1996.
available online at http://www.cic.org/clip4.html.

[FN7] U.S. Const. Art. I, § 8, cl. 8, available online at

http://www.law.cornell.edu/constitution/constitution.articlei.html.

[FN8] Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 at

156 (1975).

[FN9] Fogerty v. Fantasy, Inc., 114 S. Ct. 1023 at 1030 (1994).

[FN10] 17 USCA § 101 (1995). "A 'computer program' is a set of
statements or instructions to be used directly or indirectly in a
computer in order to bring about a certain result." Available online
at http://www.law.cornell.edu/usc/17/101.html.

[FN11] Karjala, Dennis S., Copyright Protection of Computer

Documents, Reverse Engineering, and Professor Miller, 19 U.
Dayton L. Rev. 975 (1994) (hereinafter "Karjala").

[FN12] Id.

[FN13]17 U.S.C. § 101 (1995).

[FN14] Karjala at 4 n. 8, n.10.

[FN15] for a more detailed discussion of the patent/copyright

issue, see Miller, Arthur R. Copyright Protection For Computer
Programs, Databases, and Computer-Generated Works: Is
Anything New Since CONTU? 106 Harv. L. Rev. 977 (March
1993), also Karjala.

[FN16] 17 U.S.C. § 102(a) (1995) available online at

http://www.law.cornell.edu/usc/17/102.html.

[FN17] Id.

[FN18] 17 U.S.C. § 102(a)(1) (1995).

[FN19] H.R.Rep. No. 1476, 94th Cong., 2d Sess. 54 (1976).

[FN20] 17 U.S.C.A. § 102(b) (1995).

[FN21] Bateman v. Mnemonics, Inc. 1996 WL 128141 n.23 (11th

Cir.(Fla.)) (hereinafter "Bateman") available online at
http://www.law.emory.edu/11circuit/dec95/93-3234.man.html.
[FN22] 17 U.S.C.A. § 106 (1995) available online at
http://www.law.cornell.edu/usc/17/106.html.

[FN23] 17 U.S.C.A. § 501(a) (1995) available online at

http://www.law.cornell.edu/usc/17/501.html.

[FN24] 17 U.S.C.A. §107 (1995) available online at

http://www.law.cornell.edu/usc/17/107.html.

[FN25] 17 U.S.C.A. §107(1) (1995).

[FN26] 17 U.S.C.A. §107(2-3) (1995).

[FN27] 35 Stat. 1075 (1909).

[FN28] When overhauling the Copyright in 1976, the authors

"intended to restate the present judicial doctrine of fair use, not to
change, narrow, or enlarge it in any way." H.R. Rep. No. 94-1476,
94th Cong., 2d Sess., p. 66 (1976).

[FN29] Feist Publications, Inc. v. Rural Telephone Service Co.,

Inc., 499 U.S. 340 at 345-46, 111 S.Ct. 1282 at 1287-88, (Mar 27,
1991) (hereinafter "Feist") available online at
http://www.law.cornell.edu/supct/classics/499_340o.htm.

[FN30] Id. 499 U.S. at 343, 111 S.Ct. at 1286.

[FN31] Id.

[FN32] Id. 499 U.S. at 344, 111 S.Ct. at 1287.

[FN33] Id. 499 U.S. at 345, 111 S.Ct. at 1287.

[FN34] Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc.,

797 F.2d 1222 (3rd Cir.(Pa.), Aug 04, 1986) available online at
http://www.columbia.edu/~law9023/whelan_v_jaslow.

[FN35] see Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855
n. 3 (2d Cir.1982) (source code); Apple Computer, Inc. v. Franklin
Computer Corp., 714 F.2d 1240, 1246-47 (3d Cir.1983) (source
and object code), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690
(1984); Williams Electronics, Inc. v. Artic International, Inc., 685
F.2d 870 (3d Cir.1982) (object code).

[FN36] Whelan at 1234-6.

[FN37] see CMAX/Cleveland, Inc. v. UCR, Inc., 804 F.Supp. 337

(M.D.Ga., Sep 25, 1992) (rejected Whelan); Computer Associates
Intern., Inc. v. Altai, Inc., 775 F.Supp. 544, (E.D.N.Y., Aug 09,
1991) (disagreed with Whelan) (hereinafter "CAI") available
online at
http://www.lpf.org/Links/prep.ai.mit.edu/altai.appeal.decision;
Plains Cotton Co-op. Ass'n of Lubbock, Texas v. Goodpasture
Computer Service, Inc., 807 F.2d 1256 (5th Cir.(Tex.), Jan 21,
1987) (declined to follow); Apple Computer, Inc. v. Microsoft
Corp., 799 F.Supp. 1006, (N.D.Cal., Aug 07, 1992) (called into
doubt).

[FN38] For a better definition of source code and object code, see
E.F. Johnson Co. v. Uniden Corp. of America, 623 F.Supp. 1485 at
1488 (D.Minn.1985).

[FN39] Robert A. Kreiss, Accessibility and Commercialization in

Copyright Theory, 43 UCLA L.Rev. 1, 32 n. 110 (1995)
(hereinafter "Kreiss").

[FN40] Sony Corp. of America v. Universal City Studios, Inc., 464

U.S. 417, 104 S.Ct. 774 (U.S.Cal., Jan 17, 1984) (hereinafter
"Sony") available online at
http://www.law.cornell.edu/supct/cases/464us417.htm.

[FN41] Id. 464 U.S. at 451, 104 S.Ct at 793.

[FN42] Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th
Cir.(Cal.), Oct 20, 1992) (hereinafter "Sega") available online at
http://www.law.syr.edu/Course.Materials/Chon/cases/sega.wp1.txt.

[FN43]Sega at 1522.

[FN44] Atari Games Corp. v. Nintendo of America Inc., 975 F.2d

832 (Fed.Cir.(Cal.), Sep 10, 1992) (hereinafter "Atari") available
online at http://www.columbia.edu/~law9023/nintendo.

[FN45] Feist at 499 U.S. at 350, 111 S.Ct. at 1290.

[FN46] Atari at 843.

[FN47] Id. at 846-847.

[FN48] Bateman at 3, n.18.

[FN49] Id. at 1-3.

[FN50] Id. at 12.

[FN51] Sega at 1514.

[FN52] see CAI at 705.

[FN53] Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823
(10th Cir.1993); also Bateman at 7.

[FN54] CAI at 702-711.

[FN55] Concrete Machinery Co. v. Classic Lawn Ornaments, Inc.,

843 F.2d 600, 606 (1st Cir.1988).

[FN56] National Commission on New Technological Uses of

Copyrighted Works, Final Report 1, at 20 (1979) (hereinafter
"CONTU") available online at
http://www.cni.org/docs/infopols/www/CONTU.html.

[FN57] CAI at 709-710.

[FN58] CAI at 710.

[FN59] S. 1284, H.R. Res. 2441, 104th Cong., 1st Sess. (1995).

[FN60] Id.

[FN61] Home Recording Rights Coalition, The "Primary Purpose

or Effect" Standard, Without Legal or Technical Guidelines, Is
Unfair and Unworkable (1996) available online at
http://www.access.digix.net/~hrrc/primpur.html.

[FN62] Sony at 464 U.S. at 442, 104 S.Ct at 788-9.

[FN63] Home Recording Rights Coalition, Inadvertantly

Circumventing Technological Protection Systems (1996) available
online at http://www.access.digix.net/~hrrc/circum.html.

[FN64] Eight Myths About the NII Copyright Protection Act

available online at http://www.cic.org/myths.html.

[FN65] Software Publishers Association, SPA Greets White House

Report as "Milestone on the Digital Highway" There Are No
Border Guards in Cyberspace (Sept. 5, 1995) available online at
http://www.spa.org/gvmnt/whitep.htm.

[FN66] Feist 499 U.S. 340 at 349, 111 S.Ct. at 1290. (1991).
[FN67] Newcomb, Jon. Letter to the Editor of Wired, (1996)
available online at http://www.cic.org/wiredlet.html.