Back in 2002, Lexmark, the maker of cheap, dopey printers, sued a company called Static Control Components. Lexmark's laser printer toner cartridges contained a chip that measures (approximately) the amount of toner left in a cartridge. Companies that buy toner cartridges from Lexmark can get them at a discount using Lexmark's "Prebate" program, whereby a business agrees to send a used cartridge back to Lexmark for re-filling. The program specifies that these businesses may only buy their cartridges from Lexmark, and software on the chip and in the printer itself ensures that customers don't violate this agreement.

In steps Static Control Components (SCC), which manufactures a chip that breaks the encryption on Lexmark's toner chip, allowing consumers to use third-party toner cartridges instead of Lexmark's. Lexmark sued under the Digital Millennium Copyright Act (DMCA), alleging that SCC's technology is being used to "circumvent a technological measure that effectively controls access to a work" that is copyrighted. In this case, Lexmark's control programs are copyrighted.

Lexmark provided three theories of liability:

First, Lexmark alleged that SCC violated the copyright statute, 17 U.S.C. § 106, by reproducing the Toner Loading Program on its SMARTEK chip. Second, it alleged that SCC violated the DMCA by selling a product that circumvents access controls on the Toner Loading Program. Third, it alleged that SCC violated the DMCA by selling a product that circumvents access controls on the Printer Engine Program.

The Sixth Circuit Court of Appeals, in Lexmark v. Static Control Components (03-5400), didn't buy this argument. The case was appealed to the Supreme Court, but the Court rejected it.

Which brings me to my point: why is software copyrightable? The United States Code makes an explicit distinction between copyrights and patents:

17 U.S.C. 102:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, 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. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

(b) 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.

Take a look at that last paragraph. Copyrights are not supposed to be extended to inventions or devices which engage in some sort of utilitarian function. What is a computer program? Is it a literary work? No. Is it a musical work, a dramatic work, a pantomime, a sculpture, a motion picture, a sound recording, or an architectural work? I believe we can all agree that it is none of those. But, of course, these are just examples of things that are copyrightable; the list is not all-inclusive.

Is a computer program an "idea"? Well, certainly, but so is a sculpture. Is a computer program a "procedure"? Yes, at its most basic, a computer program is nothing more than a set of instructions. Here is a computer program:

10 PRINT "I AM GOING CRAZY"
20 GOTO 10
30 RUN

This is a set of instructions written in BASIC. In BASIC, the computer goes through lines of code sequentially until it's told to stop. The above program tells the computer to display the words I AM GOING CRAZY. The computer then moves on to the next instruction, which tells it to go back to line 10. It again displays I AM GOING CRAZY, then moves on to the next instruction, which tells it to go back to line 10. (Line 30, RUN, tells the computer to execute the program.) You get the idea. This will cause the computer to continue displaying the words "I am going crazy" until someone turns it off. The computer is helpless to do anything other than that which it is told. It is executing a series of instructions, and this is a "procedure." It is also a "process," "system," and "method of operation."

Why, then, is software protected by copyrights? Let's take a more sophisticated piece of software, like WarCraft III. It has some literary and artistic elements, and those can be copyrighted: the names, characters, music, and storyline can all be copyrighted. The code which powers the game, however, must be patented!

Why copyright protection, then? Because software manufacturers lobbied for it. And because copyright protection is stronger than patent protection. If you copyright something today, you hold an exclusive right to reproduce that work for the length of your life and 70 years afterward. If you copyright something anonymously, under a pseudonym, or for hire, then you hold a copyright for 120 years after its creation [15 U.S.C. 302]! Companies like Walt Disney have lobbied extensively to keep copyrighted materials out of the public domain (cf. the Sonny Bono Copyright Term Extension Act, which extended copyright protections by 20 more years), paying Congressmen lots of money to extend copyrights just as they are about to expire. A patent, on the other hand, is enforcable for only 20 years after the date the patent was issued [35 U.S.C. 154(a)(2)].

Or maybe I'm wrong and software should be copyrighted. Any ideas?