Merger Theory from Baker v. Selden. We also find §102(b) codified Merger:
There is extremely little legislative
history on subsection (b), indicating perhaps that it was not viewed as
particularly controversial. The House Report states that it was merely a
codification of existing law, and was not intended to change the test in any
way.[FN125] Since it is contained in section102 (dealing with copyrightable
subject matter), rather than being contained in or following section 106
(dealing with the scope of the exclusive rights in copyright), Congress
presumably intended to relate the idea-expression dichotomy to the nature of a
work, and not simply to the test of substantial similarity.[FN126]
There is some indication, however, that section 102(b) was intended to emphasize
the narrow scope of protection in order to allow expansion of copyright to new
technologies. [FN127] The language of section [p. 351] 102(b) was added in the
1969 version of the copyright bill.[FN128] The primary relevant testimony that
would seem to explain why the section was added deals almost exclusively with
the issues raised by inclusion of computer programs within the copyright
scheme.[FN129] The section was particularly designed to assure that
copyrightable programs would create a monopoly only in the particular
implementation of a method, not in an entire method for accomplishing a
particular task.[FN130] The basic concern prompting the inclusion of section
102 was one involving a work of utility, a concern to which the dichotomy seems
best suited.[FN131] Ultimately, section 102 would allow the expansion of
copyright law specifically to cover a new subject
matter.
Emphasis added.
Oracle makes much of Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc the "structure,
sequence, and organization" of ..."significant subroutines", while as indicated
over signifying the importance of RangeCheck and
where Google has demonstrated
independent creation of other methods.
In 3. Application of the Idea-Expression Dichotomy:
The
difficulties of applying the traditional doctrines to computer programs stem
from the "hybrid" nature of such programs. Computer programs, according to the
OTA Report, "are hybrid functional works insofar as they employ words and
symbols to implement and control a process."[FN212] Thus, with computer software
programs
the difficulty is protecting their descriptive aspect—the
symbols used in the program—without at the same time protecting their functional
aspect—what the symbols do in a computer. Because programs possess both a
symbolic and functional nature, copyright may either protect too little if the
copyrightable expression is limited to the literal program code, or too much if
the copyrightable expression extends beyond the program
code.[FN213]
The OTA Report reviewed some of the cases indicating
that courts are choosing the broad definition of expression to include "the
logic, design, structure, performance or even the output of the computer
program."[FN214] The OTA Report concluded by observing:
In theory,
none of these rulings is permitted under traditional copyright principles. This
is not because the courts have misinterpreted copyright law, but because
copyright law cannot be successfully applied to computer programs. Unlike
artistic or factual works, which are subject to the "abstractions" test between
idea and expression, copyright in computer software is an either/or choice. . .
. The "clear distinction" made in Baker v. Selden, "between the book, as such,
and the art it is intended to illustrate," collapses in a computer program,
because the program embodies both "the book" and "the
art."[FN215]
The idea-expression dichotomy is viewed
logically as a limitation on the copyrightability of works.[FN216] If one did
away with the dichotomy, then one might expect that more, not fewer, works would
be amenable to protection under copyright law.[FN217] How is it, then, that
[p. 369] the OTA Report, after criticizing the applicability of the
idea-expression dichotomy to computer programs, seemed to conclude that the
protection of computer programs is thereby made less appropriate?[FN218] The
Report stated, after all, that it is "wrong" to include "the logic, design,
structure, performance or even the output" of a program within the protection of
the copyright law.[FN219]
Emphasis added, and which
represents an expansion of copyright law regardless of §102 (b) through Oracle's
reasoning. The entire law review article
The Idea-Expression Dichotomy In Copyright Law by Edward Samuels is worth
reading, it speaks directly to this case.
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