Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection

Section 102 is one of the few elegant and concise provisions of the Copyright Act of 1976 (1976 Act).1 Section 102(a) sets forth the subject matter eligible for copyright protection. "Copyright protection subsists," it says, "in original works of authorship fixed in any tangible medium of expression . . . ."2 Nicely complementing this provision is its statutory cousin, § 102(b), which provides: "In no case does copyright protection for an original work of authorship 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."3 Once a work qualifies for copyright protection under § 102(a), § 102(b) informs its author and the rest of the world about certain aspects of the work that are not within the scope of copyright protection. Surprisingly few cases and very little commentary have probed the meaning of § 102(b), and in particular, of the eight words of exclusion it contains.4 Most often, courts and commentators have characterized § 102(b) as a codification of the so-called idea/expression dichotomy, that is, the longstanding copyright principle that this law protects authors against illicit appropriations of expressive aspects of their works, although not of the ideas the works contain.5 This Article will call this the "idea/expression distinction."6 Others have described § 102(b) as a codification of the Supreme Court's 1880 decision in Baker v. Seiden} which held that systems or methods of bookkeeping were beyond the scope of copyright protection in a book describing or explaining the system, and of Baker's progeny. Treatise author Paul Goldstein has suggested that both "idea" and "expression" should be understood as metaphors for aspects of protected works that either are, or are not, within the scope of copyright protection.8 That is, idea is a metaphor for that which is unprotectable by copyright law, including but not limited to abstract ideas, and expression is a metaphor for that which is within the scope of copyright protection, even when the exact words of a text, notes of a musical score, or lines of a drawing have not been appropriated.9 While this metaphorical approach has some appeal, it has two disadvantages: first, the metaphor of idea may be too powerful, causing it to be construed too narrowly, as Professor Melville Nimmer, the now-deceased author of a widely cited treatise on copyright law, has done;10 and second, it distracts readers from paying attention to the other seven words of exclusion in § 102(b) and to policy reasons that support excluding more than just abstract ideas from copyright protection. This Article argues that all eight words of exclusion were put in the statute for a sound reason and that those who read the other seven words out of the statute are mistaken. To be more consistent with § 102(b), courts would be well advised to speak of the "protectable/unprotectable distinction" in copyright law.11 Part I begins by demonstrating that the Supreme Court's decision in Baker did not, as has often been asserted, originate the distinction between ideas and their expressions. Baker's principal holding was that complex intellectual creations in the useful arts, such as bookkeeping systems and methods of operation, are beyond the scope of copyright protection in any work describing or otherwise depicting them. Baker's progeny understood, applied, and extended this holding, as well as offered rationales for limiting the scope of copyright in this way. Baker and its progeny constitute the principal case law foundations for the system, method, and process exclusions embedded in § 102(b). Part II explores the legislative history that led to the inclusion of § 102(b) in the copyright revision bills and ultimately in the 1976 Act. Several witnesses spoke strongly of the need for a statutory delimitation on the scope of copyright if Congress adopted the broad new subject matter provision, now codified as § 102(a), especially insofar as it would extend copyright protection to computer programs. …