CONTU: Dissent of Commissioner Hersey

This dissent from the Commission report on computer programs takes the view that copyright is an inappropriate, as well as unnecessary, way of protecting the usable forms of computer programs. Its main argument, briefly summarized, follows.

In the early stages of its development, the basic ideas and methods to be contained in a computer program are set down in written forms, and these will presumably be copyrightable with no change in the 1976 Act. But the program itself, in its mature and usable form, is a machine-control element, a mechanical device, which on constitutional grounds and for reasons of social policy ought not be copyrighted.

The view here is that the investment of creative effort in the devising of computer programs does warrant certain modes of protection for the resulting devices, but that these modes already exist or are about to be brought into being under other laws besides copyright; that the need for copyright protection of the machine phase of computer programs, quite apart from whether it is fitting, has not been demonstrated to this {Page 28} Commission; and that the social and economic effects of permitting copyright to stand alongside these other forms of protection would be, on balance, negative.

The heart of the argument lies in what flows from the distinction, raised above, between the written and mechanical forms of computer programs: admitting these devices to copyright would mark the first time copyright had ever covered a means of communication, not with the human mind and senses, but with machines.

Are Mature Programs “Writings”?

Programs are profoundly different from the various forms of “works of authorship” secured under the Constitution by copyright. Works of authorship have always been intended to be circulated to human beings and to be used by them-to be read, heard, or seen, for either pleasurable or practical ends. Computer programs, in their mature phase, are addressed to machines.

All computer programs go through various stages of development. In the stages of the planning and preparation of software, its creators set down their ideas in written forms, which quite obviously do communicate to human beings and may be protected by copyright with no change in the present law.

But the program itself, in its mature and usable form, is a machine-control element, a mechanical device, having no purpose beyond being engaged in a computer to perform mechanical work.

The stages of development of a program usually are: a definition, in eye-legible form, of the program’s task or function; a description; a listing of the program’s steps and/or their expression in flow charts; the translation of these steps into a “source code,” often written in a high-level programming language, such as FORTRAN or COBOL; the transformation of this source code within the computer, through intervention of a so-called compiler or assembler program, into an “object code.” This last is most often physically embodied, in the present state of technology, in punched cards, magnetic disks, magnetic tape, or silicon chips-its mechanical phase.

Every program comes to fruition in its mechanical phase. Every program has but one purpose and use – one object: to control the electrical impulses of a computer in such a particular way as to carry out a prescribed task or operation. In its machine-control form it does not describe or give directions for mechanical work. When activated, it does the work.

An argument commonly made in support of the copyrightability of computer programs is that they are just like ordinary printed (and obviously copyrightable) lists of instructions for mechanical work. The computer report calls programs forms of writing which “consist of sets of instructions.”127 But this metaphor does not hold up beyond a certain point. Descriptions and printed instructions tell human beings how to use materials or machinery to produce desired results. In the case of computer programs, the instructions themselves eventually become an essential part of the machinery that produces the results. They may become (in chip or hardware form) a permanent part of the actual machinery; or they may become interchangeable parts, or tools, insertable into and removable from the machine. In whatever material form, the machine-control phase of the program, when activated, enters into the computer’s mechanical process. This is a device capable of commanding a series of impulses which open and close the electronic gates of the computer in such order as to produce the desired result.

Printed instructions explain how to do something; programs are able to do it. The language used to describe and discuss computer programs commonly expresses this latter, active, functional capability, not the preparatory “writing” phases. For example, the Commission’s report on new works uses the following verbs to characterize the doings of various programs in computers:

select, arrange, simulate, play, manipulate, extract, reproduce, and so on.128 It is not said that the programs describeorgive instructions for the functions of the computer. They control them. This is the mechanical fact.

Issue of Communication

The Commission report on computer programs suggests that musical recordings also do work, analogous to what we have been describing. “Both recorded music and computer programs {Page 29} are sets of information in a form which, when passed over a magnetized head, cause minute currents to flow in such a way that desired physical work is accomplished.”129 But these are radically different orders of work, and the difference touches on the very essence of copyright.

We take it as a basic principle that copyright should subsist in any original work of authorship that is fixed in any way (including books, records, film, piano rolls, videotapes, etc.) which communicate the work’s means of expression. But a program, once it enters a computer and is activated, does not communicate information of its own, intelligible to a human being. It utters work. Work is its only utterance and its only purpose. So far as the mode of expression of the original writing is concerned, the matter ends there; it has indeed become irrelevant even before that point. The mature program is purely and simply a mechanical substitute for human labor.

The functions of computer programs are fundamentally and absolutely different in nature from those of sound recordings, motion pictures, or videotapes. Recordings, films, and videotape produce for the human ear and/or eye the sounds and images that were fed into them and so are simply media for transmitting the means of expression of the writings of their authors. The direct product of a sound recording, when it is put in a record player, is the sound of music-the writing of the author in its audible form. Of film, it is a combination of picture and sound-the writing of the author in its visible and audible forms. Of videotape, the same. But the direct product of a computer program is a series of electronic impulses which operate a computer; the “writing” of the author is spent in the labor of the machine. The first three communicate with human beings. The computer program communicates, if at all, only with a machine.

And the nature of the machine that plays the second recording is fundamentally and absolutely different from that of the machine that uses software. The record player has as its sole purpose the performance of the writing of the author in its audible form. The computer may in some instances serve as a storage and trans-mission medium for writings (but different writings from those of the computer programmer – i.e., data bases) in their original and entire text, in which cases these writings may be adequately secured at both ends of the transaction by the present copyright law. But in the overwhelming majority of cases its purposes are precisely to use programs to transform, to manipulate, to select, to edit, to search and find, to compile, to control and operate computers and a vast array of other machines and systems, with a result that the preparatory writings of the computer programmer are nowhere to be found in recognizable form, because the program has been fabricated as a machine control element that does these sorts of work. It is obvious that the means of expression of the preparatory writing-that which copyright is supposed to protect-is not to be found in the computer program’s mechanical phase.

An appropriate analogy to computer pro-grams, in their capacity to do work when passed over a magnetized head, would be such mechanical devices as the code-magnetized cards which open and close locks or give access to automated hank tellers. These are not copyrightable.

But a more telling analogy, since it speaks to the supposed instructional nature of programs, is afforded by that relatively primitive mechanical device, the cam. A cam, like a mature computer program, is the objectification of a series of instructions: “Up, down, up, down . . .,” or “In, out, in, out . . .” A cam may be the mechanical fixation of rather intricate and elegant instructions. A cam controlling a drill may embody such instructions as: “Advance rapidly while the hole is shallow, pause and retract for a short distance to clear chips, advance more slowly as the hole goes deeper, stop at a precise point to control the depth of the hole, retract clear of the hole, dwell without motion while the work piece is ejected and another loaded; repeat procedure.” (Computer programs can and do embody precisely similar instructions.) But although such a cam was originally conceptualized, described, and written out as this series of instructions for desired work and is, in its mature form, the material embodiment of the instructions, capable of executing them one by one, no one would say (as the Commission now says of another form of “instructions” {Page 30} – the mature computer program) that it is a literary work and should be copyrighted.

To support the proposition that programs are works of authorship the report says that “the instructions that make up a program may be read, understood, and followed by a human being,” and that programs “are capable of communicating with humans....”130 Programmers may and sometimes do read each other’s copyrightable preparatory writings, the early phases of software, but the implication of these statements is that programs in their machine form also communicate with human “readers” – an implication that is necessarily hedged by the careful choices of the verbs could be and are capable of; for if a skilled programmer can “read” a program in its mature, machine-readable form, it is only in the sense that a skilled home-appliance technician can “read” the equally mechanical printed circuits of a television receiver.

It is clear that the machine control phase of a computer program is not designed to be read by anyone; it is designed to do electronic work that substitutes for the very much greater human labor that would be required to get the desired mechanical result. In the revealing words of the report, programs ^“are used in an almost limitless number of ways to release human beings from . . . diverse mundane tasks....”131 The Commission report thus recommends affording copyright protection to a labor-saving mechanical device.

Is Copyright Protection Needed?

We may agree with a memorandum of the Commission’s Software Subcommittee that computer programs ‘are the result of intellectual endeavors involving at least as much human creativity as the preparation of telephone books or tables of compound interest”-or, we may add (thinking of the mechanical phases of programs), as the design of high-pressure valves for interplanetary rockets or of special parts for racing cars for the Indianapolis 500. The investment in these endeavors, often dazzling in their intricacy and power, does indeed warrant legal protection of the resulting devices.

But is copyright a necessary form of protection? According to the evidence placed before the Commission it is not. In all the months of its hearings and inquiries, this Commission has not been given a single explicit case of a computer “rip-off” that was not amenable to correction by laws other than copyright. Interestingly, this exactly parallels the experience of the World Intellectual Property Organization (WIPO) in its search for a model form of protection for computer programs.132 Alistair J. Hirst, attending the WIPO discussions as representative of the International Confederation of Societies of Authors and Composers, noted in an article of June 1978:

At no stage in the meetings of the Group was any convincing case ever made out for the proposition that computer software did actually needany additional legal protection; the most the representatives of the computer industry could say was that they “would like some further form of legal protection.” No documented instances of piracy were adduced; and there was no serious suggestion that technological progress in the software field had been inhibited by any shortcomings there might be in the legal protection presently available.133

CONTU has had precisely the same lack of evidence on this score. A book recently published,134 describing a large number of computer crimes committed in this country, cites no single piracy or other misappropriation that would have fallen under copyright law. A study of 168 computer crimes by the Stanford Research Institute,135 made available to the Commission, also failed to turn up any single such case.

It appears that the existing network of technological, contractual, nondisclosure, trade-secret, common-law misappropriation, and (in a few instances) patent forms of protection, possibly to be joined soon by Sen. Abraham Ribicoff’s Computer System Protection Act – to {Page 31} say nothing of laws on fraud, larceny, breaking and entering, etc.-will be wholly adequate, as they apparently have been up to now, to the needs of developers.136

Legislative Intent and the Constitutional Barrier

“It was clearly the intent of Congress,” the report says “to include computer programs within the scope of copyrightable subject matter in the Act of 1976.”137 This intent was by no means clear. It is true that in several places in the legislative reports there are passing references to computer programs which seem to assume their copyrightability under the 1909 Act and, by extension, the 1976 Act. Before these reports, the only authority for considering them potentially copyrightable was the Register of Copyright’s letter of May 19, 1964 – itself hedged with doubt whether programs were within the category of “writings of an author” in the constitutional sense. And even these legislative reports contain cautionary language on computer programs, to the effect that they would be copyrightable only “to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves.”138 Section 117 of the new copyright law provided for a moratorium precisely awaiting the conclusions of this Commission, and it indicates beyond a doubt that Congress has not reached the point of clear intention at least with respect to the use of copyrighted works.

The legislative history of the new law can give little comfort to any who would suggest that a thoughtful legislative judgment had been made about the propriety of copyright protection for computer programs. Where the Commission report finds the legislative history disconcerting, it simply avers, on its own authority, that the House Report “should be regarded as incorrect and should not be followed.”139

Even if the legislative intent were unmistakable, there would remain the distinct possibility of a constitutional barrier to the copyrighting of computer programs. It is an underlying principle of copyright law, expressed in section 102(b) of the 1976 Act, that copyright does not extend to “any idea, procedure, process, system, method of operation . . . regardless of the form in which it is described, explained or embodied in such work.” This section of the statute is intended to recognize the distinction between works conveying descriptions of processes and works which are themselves the embodiment of a system or process. In Baker v.Selden, the Supreme Court found that, as a matter of constitutional law, the latter are not protected by copyright.140

That decision has been consistently applied to deny copyright to utilitarian works-not those, like phonorecords, which contain expression made perceptible by the use of a machine, but rather those which exist solely to assist a machine to perform its mechanical function. Professor Nimmer, while criticizing some interpretations of the Baker v. Selden decision, recognized that it properly bars copyright protection for a work embodying a method of operation when duplicated of necessity in the course of its use.141 This dissent urges the view (to which Commissioner Nimmer’s concurrence, above, seems to lend further weight) that computer programs are exactly the type of, work barred from copyright by these considerations.

Distortion by Shoehorn

We now come to two technical points that arise in the Commission’s position on computer programs, matters that we stress here at some length as two examples of the forcible wrenching that is involved in fitting the mature computer program into copyright law-and consequent distortions of traditional copyright usages. It is urged that such distortions, with the formidable power of the computer industry behind them, must in the long run tend to corrupt and erode the essential purposes of copyright.{

{Page 32}

“Copies”

In its attempts to justify the copyrighting of mechanical devices – the mature phases of computer programs – the Commission’s Software Subcommittee was obliged_,at successive stages, to resort to certain euphemisms.

The first draft of its report described the usable, mechanical phases of computer programs as derivative works – a term traditionally used, with respect to the printed word, for condensations, dramatizations, translations, and so on (each of which has always had to be copyrighted separately from the parental work). When the invalidity of this suggestion became evident, the second draft of the report characterized the programs in their usable machine forms, equally with their written forms, as literary works. When the difficulty in maintaining that the mechanical commands on punched cards, magnetic tapes, disks, and printed circuits in chips were identical with programs’ preparatory writings had been considered, the third draft of the report brought yet another shift of terms. The mechanical phases of programs were now described as copies.On several grounds this euphemism proves as unserviceable as the previous ones. (And so, in this view, will every euphemism that attempts to justify the copyrighting of a machine control element.)

Copies, for the control of which the rights vested in copyright were devised, are defined in the 1976 Act as:

material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.142

This definition has always referred to one form or another of reproduction of an original work, for the purpose of dissemination to and perception by human beings: in plain language, books, monographs, films, prints, and other such replications we all recognize as copies in the true copyright sense. Their uses always involved perception by one human sense or another of the linguistic intentions, the images, or the sounds of the original works. A data base, when keyed or run into a computer, is being copied in this sense, for the data are maintained in the copy as data, and they issue as data for human use in the end product. But a program, when keyed or run into a computer, is transformed by a compiler program into a purely machine state. The term copy is meaningless for the reason that in this transformation the means of expression of the original work become totally irrelevant. All that matters is the program’s functional use.

Furthermore, many programs (in fact, a greater and greater proportion of commercial programs) never are “input” into computers in the conventional sense. They are distributed already transformed into their purely mechanical form as printed circuits on chips in microprocessors. They are, in all but name, hardware. They are no more copies in the copyright sense than are repeatedly stamped-out solid-state circuits of television sets. These programs in microprocessors are built into, or can be clipped into, automobiles, airplanes, telephone and television sets, microwave ovens, games, and an ever-growing number of industrial and home gadgets. How can this vast class of machine-control elements ever be considered copiesof literary works?

We are dealing here with an entirely new technology, one with a highly intricate multiplicity of means of fixation, of transformation, of movement from one medium (of communication) to another (of mechanical function) and back again. The fact that some of these many intricate fixations and changes enable a human-readable version of a program to be stored in a computer parallel to its mechanical variant, or to be reconverted to eye-readable form from its mechanical variant, does not mend at all the basic distortion that arises from this abuse of the term copies.

In discussing copies, the Commission report admits the central difficulty to which this dissent addresses itself:

[T]he many ways in which programs are now used and the new applications which advancing technology will supply may make drawing the line of demarcation ~between the copyrightable form of a program and the uncopyrightable process which it implements] more and more difficult. To attempt to establish such a line in this report written in 1978 would be futile. Most infringements, at least in the immediate future, are likely to involve simple copying. In the event that future technology permits programs to be {Page 33} stated orally for direct input to a computer through auditory sensing devices or permits future infringers to use an author’s program without copying, difficult questions will arise.143

It is the thesis of this dissent that all such difficulties, present and future, disappear if the euphemism in the word copies is recognized for what it is, and if a clear line is drawn forthwith. The line can and should be drawn in 1978. The line should be drawn at the moment of the program’s transformation, by whatever present or future technique, to a mechanical capability. This is the moment at which the program ceases to communicate with human beings and is made capable of communicating with machines.

Here is dramatized, in our view, the central flaw – and the subtle dehumanizing danger – of the Commission’s position on programs. To call a machine-control element a copy of a literary work flies in the face of common sense. Ask any citizen in the street whether a printed circuit in a microprocessor in the emission control of his or her car is a copy of a literary work, and see what answer you get. But if our government tells the citizens in the street that this is so and makes it law, what then happens to the citizen’s sense of distinction between works that speak to the minds and senses of men and women and works that run machines-or, ultimately, the citizen’s sense of the saving distinction between human beings themselves and machines themselves?

Adaptations

A particularly serious blurring of valid traditional distinctions lies in the report’s extension of copyright protection to adaptationsof programs.144 There is not merely a question here of unfairness to all other sorts of adaptations, which must be recopyrighted (as in the case, for example, of a telephone directory, which is annually adapted and must be recopyrighted each year). What is shocking, in its transparency, is the reason given by the report for authorizing these adaptations – “to facilitate use.”145

The transparency lies in the fact that the means of expression of the original program the only thing in which copyright is reposed is here again totally irrelevant. The only test the user is required to meet is whether the machine phase of the program, having been adapted, will then work.And what will make it work is certainly not its means of expression but its mechanical idea, which remains constant however expressed.

In his testimony before CONTU in Cambridge, Massachusetts, on November 17, 1977, Prof. J.C.R. Licklider of the Massachusetts Institute of Technology raised, as one of his concerns about the idea of copyrighting the mechanical phases of programs, precisely this matter of adaptation.146 He gave the example in which a protracted program may be taken from “machine language, or FORTRAN, or whatever level . . . to a higher level and back to a lower level,” and stressed that all that survives from one version to the other is “the essential underlying idea, not the mode, not the form of expression.”

In the present reality of computer usage, particularly in sophisticated operations, a great deal of programming ingenuity goes precisely into various kinds of adaptation, commonly called “program maintenance”: new mechanical functions may be added to an existing program; a program may be modified, possibly extensively, to make it workable in a different or more up-to-date computer; or a program may be changed to mesh with other programs in a complex multiprocessor. Under these and many other circumstances, the protection would remain in effect for an underlying idea that was itself being adapted, or perhaps even being transformed into something quite different from the original idea. The mode of expression of the original writing would be long gone. As Licklider pointed out, only the “effect of the action of the program” is of consequence in a series of such changes; programmers, he said, “don’t care a thing for the particulars of the expression.”147

The limitations on adaptions suggested in the Commission report will, in the real world {Page 34} of program maintenance, be unthinkably difficult to police.

By the admission of the word adaptation, in this new sense, with no means of test except workability, the Commission has bypassed a fundamental distinction of copyright from other forms of protection and may well have opened the way for covert protection, in the name of copyright, of the underlying mechanical idea or ideas of a program, rather than of its original means of expression.

Social Effects

Access

The Commission report has based much of its case on its conclusion that copyright would ensure greater public access to innovative programs than would continued reliance on trade-secrecy law.

The evidence the Commission has received casts considerable doubt on this argument. In the first place, the testimony CONTU has heard makes it quite clear that the industry would have no intention of giving up trade-secrecy protection in favor of copyright; to the contrary, every indication is that it would fight hard to assert its undeniable continuing right to the former. It is obvious that the industry, faced with a choice between secrecy and dissemination, as represented in the choice between trade-secrecy laws and copyright, has overwhelmingly opted for the former. From 1964, when the Register first received programs for registration, to January 1, 1977, only 1,205 programs have been registered (and two companies, IBM and Burroughs, accounted for 971 of them). According to International Computer Programs, Inc., which publishes a newsletter on the programming industry, something in the order of 1,000,000 programs are developed each year (taking into account adaptations of existing programs so radical as to make them new programs). There are roughly 300,000 programmers in the United States who spend at least part of their time developing new programs. These figures show how miniscule the industry’s interest in copyright has been, and they strongly’ suggest that such registration as has taken place has been in the nature of bet-hedging, reflecting efforts of major hardware manufacturers to assert any possible colorable claim to protection, regardless of its real legal merits.

The Commission report recognizes that ^“the availability of copyright for computer programs does not, of course, affect the availability of trade secrecy protection.”148 It suggests leaving all future “difficult questions” for settlement by the courts on a case-by-case basis.149

The uncertainty resulting from this situation, as Robert O. Nimtz of Bell Laboratories has pointed out in a response to the Commission’s draft report, “would have the unfortunate consequence of driving computer program owners into even deeper secrecy – by encryption, physical barriers to access, contractual restraints, nondisclosure agreements, and further innovative technical tricks for locking out pirates, thieves, and competitors. “Secrecy will be seen as the only effective protection for their creations.”150 Such being the case, public access to innovative programs would likely be inhibited rather than eased by the addition of the copyright solution to those that already exist and that would continue to exist.

Indeed, it is evident that, with eased requirements for deposit and disclosure, copyright itself would be used as one more device to prevent rather than enable, access to innovative programs – one more device of industrial security. The entitlement of copyright protection to adaptationsof programs might, under these circumstances, even further inhibit access, insofar as it provided owners with a covert means of protecting the underlying ideas of their program. And the lengthy term of seventy-five years for corporate ownership of copyright would be a negative balance, at the very least, against the presumed “thinness” of the protection.

Economic Costs

All of this, rather than reducing the transaction costs of using and protecting as the Commission argues, would in fact raise the costs: for producers, transacting copyright {Page 35} while spending more and more money looking harder than ever for new and surer forms of secrecy; for users, to whom the added costs of this search and its found devices would be passed along in higher prices; and for the taxpaying public, which would have to bear the costs of the added burdens on the Copyright Office and the courts.

A more likely prospect for the reduction of money costs would lie in the exclusion of usable computer programs from copyright. This would eliminate or diminish the uncertainty as to legal protection available for computer programs. All questions of the constitutionality of such protection would become moot; some of the guesswork which would otherwise have colored all business planning for securing software would be voided.

An additional consideration would be the easing of the administrative burden on the Copyright Office. The office, already monstrously overloaded by administration and regulation of the new law, is presently unsuited for making evaluations of computer programs which might be registered for copyright. Eliminating this responsibility would save a public expenditure and place the costs of commercial protection on those enterprises seeking its benefits.

Concentration of Economic Power

While it has always been the case that corporate entities could be copyright proprietors, the picture CONTU has been given, where rights in computer programs are concerned, is that the proprietor is almost invariably corporate. If there is an individual “author,” it will be an author for hire, whose creativity is in strict harness and whose property rights are nonexistent.

The sheer bigness of the corporate enterprise in computers is staggering. According to testimony by Peter McCloskey, president of Computer and Business Equipment Manufacturers’ Association (CBEMA), the combined revenues of the forty-two members of that association of manufacturers of computers and related business equipment rose in 1976 to $32.7 billion; as to software, we heard at one point an estimate of $17 billion of production in the next three years.151 The art is growing and changing with blinding speed. In his testimony, Ralph Gommery of IBM suggested, with perhaps a pinch of hyperbole, that if the automobile industry had progressed on the same curve as computers in the last fifteen years, we would now have been able to buy for twenty dollars a self-steering car that would attain speeds up to four hundred miles per hour and be able to drive the length of California on one gallon of gasoline.

In a study funded by this Commission, Harbridge House concluded that the availability of copyright protection for computer software is “of monumental insignificance to the industry.”152 It is important for us to bear in mind that the universe of this study consisted almost entirely of smallish, independent corporate producers. The two trade associations that were most active in pressing their views on this Commission, CBEMA and the Information Industry Association, represent primarily major industrial corporations. The Association of Data Processing Service Organizations, which more than any other trade association represents independent computer program producers, was conspicuously absent from Commission appearances and limited its participation to a written response in support of the Software Subcommittee’s recommendations. Such perfunctory participation certainly tends to support the Harbridge House view as to the interest of the independents.

On this point, the WIPO experience strikingly parallels that of CONTU. Alastair J. Hirst writes that a one-sided approach in the WIPO search

was more or less inevitable, given the composition of the Group. It is important to distinguish between the names shown on the list of participating organizations, and the individuals who were most active in directing and moulding the discussion as it proceeded. Of the latter, the most frequent and the best-informed grouping was that composed of patent agents and lawyers in the employ of the large computer companies such as ICL and IBM. Even amongst those representing the computer industry, there was a singular lack of representation from the smaller independent software houses, who were intended {Page 36} to be the chief beneficiaries of the new software right: those who had the most influence on the discussions were in fact the representatives of the large companies who are in many ways the economic adversaries of these intended beneficiaries.153

Congress is urged to take careful note of this difference. Why do the large industrial corporations press for copyright, while it seems to be a matter of much less concern to the small independents? Is it not evident, from the testimony CONTU received, that the big companies want, by availing themselves of every possible form of protection, to lock their software into their own hardware, while the independents want to be able to sell their programs for use in all the major lines of hardware?

Thus, a warning appears to be in order that the copyrighting of the machine phases of programs would be likely to strengthen the position of the large firms, to reinforce the oligopoly of these dominant companies, and to inhibit competition from and among small independents.

The country has lately seen an alarming trend toward the concentration of economic power in all the communications industries. One company dominates telephonic communication. One company (IBM) dominates the computer hardware field, while three others (Burroughs, Honeywell, and Sperry-Univac) join with TBM to manufacture over 85 percent of large-scale computers. One company (Xerox) dominates photocopying, and, again, three other companies (IBM, Kodak, and 3M) outstrip all others. Three networks dominate television. There are now but six major film distributors. Paperback publishing has become the backbone of the book industry, and there are now but seven leading paperback lines. Industrial conglomerates are buying up these communications leaders horizontally: e.g., Gulf and Western owns both Paramount Pictures and Simon and Schuster, which in turn owns Pocket Books.

If there are social benefits to our nation, as we have always believed, in pluralism, in diversity, in lively competition in the marketplace, and in the rights of the individual to maximum freedom of choice within the limits of the social contract and, above all, to maximum freedom of speech, then this increasing concentration of corporate power in that most sensitive area in a democracy – the area of communication from one human being to another, from leaders to citizens and vice versa-should surely be a matter of greatest concern.

Communication – Human And Mechanical

The aim of all writing, be it for art or use, is communication. Up to this time, as we have seen, copyright has always protected the means of expression of various forms of “writing” which were perceived, in every case, by the human sense for which they were intended:

written words by the human eye, music by the ear, paintings by the eye, and so on. Here, for the first time, the protection of copyright would be offered to a “communication” with a machine.

This pollution of copyrighted “writings” with units of mechanical work would affect not only creators but also the general public. Placed beside such traditional end products as books, plays, motion pictures, television shows, dance, and music, under the aegis of copyright, what end products of computer programs would we find?

The overwhelming majority of program applications are mechanical and industrial: the monitoring of an assembly line in a factory; the microprocessors in an automobile; the aiming device of a weapons system; the coordination of approach patterns at an airport. An entire branch of the program industry is devoted to systems software – new techniques for more efficient uses of machines, for more efficient industrial processing.

Progress is progress, and we can guess that we must have all these products of human ingenuity to keep one jump ahead of entropy. It may reasonably be argued, as the Commission report does, that they reduce the load of human labor. But a definite danger to the quality of life must come with a blurring and merging of human and mechanical communication.

As one step in its education, this Commission has had the benefit of a book written by one of our witnesses, Prof. Joseph Weizenbaum of the Massachusetts Institute of Technology, entitled Computer Power and Human Reason – a work which is both intricately technical and profoundly humanistic. Something that Professor {Page 37} Weizenbaum keeps emphasizing over and over again is the extent to which computer scientists, especially those who have worked on so-called artificial intelligence – “and large segments of the general public as well” – have come to accept the propositions “that men and computers are merely two different species or a more abstract genus called ‘information processing systems,’” that reason is nothing more than logic, and “that life is what is computable and only that.”154

A society that accepts in any degree such equivalences of human beings and machines must become impoverished in the long run in those aspects of the human spirit which can never be fully quantified and which machines may be able in some distant future to linguistically “understand” but will never be able to experience, never be able to bring to life, never be able therefore to communicate. Those aspects include courage, love, integrity, trust, the touch of flesh, the fire of intuition, the yearning and aspirations of what poets so vaguely but so persistently call the soul-that bundle of qualities we think of as being embraced by the word humanity. This concern is by no means irrelevant to the issue of whether computer programs should be copyrighted. It is the heart of the matter.

Recommendation

The logical conclusion of this dissent, then, is a recommendation to Congress that:

The Act of 1976 should be amended to make it explicit that copyright protection does not extend to a computer program in the form in which it is capable of being used to control computer operations.

Congress could obtain any technical advice necessary to assist it in reaching an appropriate definition of the cutoff point, the point at which a program ceases being a copyrightable writing and becomes an uncopyrightable mechanical device.

In our discussions, several possibilities have presented themselves: (1) the moment of transformation from “source” to “object” program; (2) the moment of input into a computer or microprocessor; or (3) at the point where a program goes from “natural language,” which any expert reader may at once grasp, to higher-level, formal computer language – this last deriving from Professor Weizenbaum, who writes: “A higher-level formal language is an abstract machine.”155 With rapidly advancing technology, natural language does in some programs already reach to the very moment of entry into the computer. In every case, however, Professor Weizenbaum makes clear, a transformation to a machine state takes place, with a result that when the program is run, communication as we understand it ceases, and what he calls “behavior” – an opening and closing of electronic gates – sets in. Where his book is most eloquent, for our purposes, is in its powerful warning of our loss of humanity if we come to believe, as many already do, that anything like human communication is still taking place, or ever can take place, after this mechanical stage has set in.

Congress should weigh most carefully the heavy responsibility of breaking with tradition and enabling, by law of the land, for the first time ever, copyright protection for communication, not with our fellow human beings, but with machines – thus equating machines with human beings as the intended recipients of the distribution that copyright was designed to foster.

Surely it is especially vital, in a time of hurtling and insatiable technology, that the nation’s laws reflect, whenever possible, a distinction between the realm and responsibility of human beings and the realm and responsibility attributed to machines.

Next section: Dissent of Commissioner Karpatkin

127 See this chapter under Computer Programs.

128 See this chapter under New Works.

129 See this chapter under Computer Programs.

130 See this chapter under Computer Programs and under Scope of Copyright in Programs.

131 See this chapter under Computer Programs.

132 Ibid.

133 CISAC document no. CJL/78/45.266, p.2.

134 Whiteside, Computer Capers: Tales of Electronic Thievery, Embezzlement and Fraud (1978).

135 Parker, Computer Abuse (Stanford Research Institute, 1973).

136 95th Cong., 1st sess., 1977, S. 1766.

137 See this chapter under Statutory Copyrightability of Programs.

138 House Report, supra note 1, p.54.

139 Note 111, supra.

140 101 U.S. 99 (1879).

141 1 Nimmer on Copyright, § 37.2 (1976).

142 17 U.S.C. § 101.

143 See this chapter under Scope of Copyright in Programs.

144 See this chapter under Recommendations for Statutory Change.

145 Ibid.

146 See Transcript, CONTU Meeting No. 18, pp.130-32.

147 Ibid., p.131.

148 See this chapter under Copyright and Other Methods Compared.

149 See this chapter under Scope of Copyright in Programs.

150 Nimtz comment, letter to CONTU, August 30, 1977, p.9.

151 Transcript, CONTU Meeting No.6, p.11.

152 Legal Protection of Computer Software: An Industrial Survey, iii (Harbridge House, 1977).

153 Supra, note 133.

154 Weizenbaum, Computer Power And Human Reason 158, 240.

155 Ibid., p.103.